Opinion
2013-04052.
08-16-2017
PEOPLE of State of New York, respondent, v. Jeffrey MADISON, appellant.
Seymour W. James, Jr., New York, NY (Lorca Morello of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.
Seymour W. James, Jr., New York, NY (Lorca Morello of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.
MARK C. DILLON, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, and FRANCESCA E. CONNOLLY, JJ.
Appeal by the defendant from an order of the Supreme Court, Kings County (Dowling, J.), dated April 10, 2013, which, after a hearing, designated him a level three sexually violent offender pursuant to Correction Law article 6–C.
ORDERED that the order is reversed, on the law and in the exercise of discretion, without costs or disbursements, and the defendant is designated a level two sexually violent offender.
The defendant's contention that he should not have been assessed points under risk factor 11 is not preserved for appellate review (see People v. Jones, 130 A.D.3d 601, 10 N.Y.S.3d 894 ). However, we reach it in the interest of justice (see People v. Souverain, 137 A.D.3d 765, 766, 25 N.Y.S.3d 683 ).
"In order to demonstrate that an offender was ‘abusing [drugs or] alcohol at the time of the offense,’ the People must show by clear and convincing evidence that the offender used [drugs or] alcohol in excess either at the time of the crime or repeatedly in the past" ( People v. Palmer, 20 N.Y.3d 373, 378, 960 N.Y.S.2d 719, 984 N.E.2d 917, quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006] ). Here, although the People offered evidence that the defendant used drugs after the time of the offense, the People failed to prove by clear and convincing evidence that the defendant used alcohol or drugs in excess either at the time of the offense or repeatedly in the past (see People v. Palmer, 20 N.Y.3d at 378, 960 N.Y.S.2d 719, 984 N.E.2d 917 ; People v. Ceja, 143 A.D.3d 685, 686, 38 N.Y.S.3d 587 ; People v. Rohoman, 121 A.D.3d 876, 877, 994 N.Y.S.2d 389 ; People v. Coger, 108 A.D.3d 1234, 1235, 969 N.Y.S.2d 374 ). Accordingly, the Supreme Court should not have assessed the defendant 15 points under risk factor 11.
After subtracting the 15 points improperly assessed under risk factor 11, the defendant's point total on the risk assessment instrument is 105, within the range for a level two sex offender (see People v. Jordan, 145 A.D.3d 691, 693, 44 N.Y.S.3d 66 ). Moreover, although a court may depart from the presumptive risk level where the circumstances warrant that departure (see People v. Wyatt, 89 A.D.3d 112, 119, 931 N.Y.S.2d 85 ), here, the defendant failed to establish his entitlement to a downward departure to risk level one (cf. People v. Abdullah, 31 A.D.3d 515, 516, 818 N.Y.S.2d 267 ). Accordingly, we reverse the order appealed from and designate the defendant a level two sexually violent offender.
The defendant's remaining contentions are without merit.