THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DAVID VANDERMALLIE DEFENDANT APPELLANT (2023)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by determining that defendant is a level two risk pursuant to the Sex Offender Registration Act and as modified the order is affirmed without costs.

Memorandum: Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.). As the People correctly concede, County Court improperly assessed 10 points under risk factor 15 because the People did not establish by the requisite clear and convincing evidence (see People v Pettigrew, 14 NY3d 406, 408 [2010]) that defendant's living situation was inappropriate (see People v Hagen, 193 AD3d 991, 992 [2d Dept 2021]; People v Morris, 140 AD3d 843, 844 [2d Dept 2016], lv denied 28 NY3d 904 [2016]). The evidence relied on by the People at the hearing established, at most, that defendant's living situation was uncertain, which, standing alone, is insufficient to show that the living situation was inappropriate (see People v Patel, 192 AD3d 1052, 1053 [2d Dept 2021]; People v Rodriguez, 130 AD3d 897, 898 [2d Dept 2015]; see generally People v Alemany, 13 NY3d 424, 432 [2009]). The court determined that defendant's score on the Risk Assessment Instrument should be assessed at 110 points, but that score must therefore be reduced by 10 points, which results in a total score of 100 and renders defendant a presumptive level two risk. We modify the order accordingly.

In light of our determination, defendant's remaining contention is academic.

Entered: November 17, 2023

Ann Dillon Flynn

Clerk of the Court