PEOPLE v. WALESKI (2008)

Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.).   We agree with defendant that County Court erred in adopting the recommendation of the Board of Examiners of Sex Offenders that an upward departure from a level one to a level two risk was warranted based upon the failure of defendant to address his alcohol and marihuana use.  “The court's reliance on defendant's history of drug and alcohol abuse to justify the upward departure from the presumptive risk level was improper because defendant's history of substance abuse was already taken into account when defendant was assessed maximum points for that history in the risk assessment instrument” (People v. Perkins, 35 A.D.3d 1167, 1168, 826 N.Y.S.2d 875;  see People v. Mount, 17 A.D.3d 714, 715, 792 N.Y.S.2d 697).   In addition, we note that defendant successfully participated in a sex offender treatment program while incarcerated.   We therefore conclude that the court's determination of defendant's risk level is not supported by the requisite clear and convincing evidence (see § 168-n [3];  cf. People v. Carswell, 8 A.D.3d 1073, 778 N.Y.S.2d 646, lv. denied 3 N.Y.3d 607, 785 N.Y.S.2d 24, 818 N.E.2d 666), and we modify the order accordingly.

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

MEMORANDUM: