PEOPLE v. GERALD (2007)

Appeal from an order of the City Court of New Rochelle, Westchester County (Preston S. Scher, J.), rendered May 12, 2006.   The order, insofar as appealed from, upon granting defendant's motion for reargument, adhered to the court's prior decision designating defendant a level two sex offender.

Order, insofar as appealed from, reversed without costs and defendant is reclassified as a level one sex offender.

Following his plea of guilty to the crime of sexual misconduct, defendant was deemed a sex offender pursuant to section 168-a of the Correction Law. Thus, in accordance with the Sex Offender Registration Act (Correction Law art. 6-C), a hearing was held to determine defendant's appropriate risk level.   At the hearing, defendant disagreed with the People's recommendation that, pursuant to the risk assessment instrument prepared by the Board of Examiners in accordance with Correction Law § 168-d, he should be assessed 15 points in risk factor 11, based on a history of alcohol and drug abuse, and 10 points in risk factor 15, based on inappropriate living arrangements.   Following the hearing, the court agreed with the People's recommendation, concluded that defendant's presumptive risk level was moderate, based upon a risk factor score of 90, and, therefore, classified defendant as a level two sex offender.

 The People must prove the facts supporting each risk factor upon which the risk level determination is based by “clear and convincing evidence” (Bonacquist, 1998 Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 10B, Correction Law art. 6-C, at 273;  see People v. Guaman, 12 Misc.3d 707, 819 N.Y.S.2d 390 [2006];  People v. Jimenez, 178 Misc.2d 319, 679 N.Y.S.2d 510 [1998];  People v. Salaam, 174 Misc.2d 726, 666 N.Y.S.2d 881 [1997] ).   In making an assessment, a court is not bound by the formal rules of evidence but has wide latitude in the type and nature of the evidence it may consider (see People v. Guaman, 12 Misc.3d 707, 819 N.Y.S.2d 390, supra;  People v. Wiggins, 1 Misc.3d 913(A), 2004 N.Y. Slip Op. 50057[U], 2004 WL 300074;  People v. Victor R., 186 Misc.2d 28, 715 N.Y.S.2d 283 [2000];  People v. Salaam, 174 Misc.2d 726, 666 N.Y.S.2d 881, supra ).   Thus, the court may, as it did in the case at bar, rely upon information contained in the presentence report (see People v. Brooks, 308 A.D.2d 99, 102, 763 N.Y.S.2d 86 [2003], lv. denied 1 N.Y.3d 502, 775 N.Y.S.2d 240, 807 N.E.2d 290 [2003];  People v. Mitchell, 300 A.D.2d 377, 751 N.Y.S.2d 530 [2002], lv. denied 99 N.Y.2d 510, 760 N.Y.S.2d 101, 790 N.E.2d 275 [2003] ).

 The court based its assessment of 15 points for drug abuse upon defendant's admission, as set forth in the presentence report, that he had used marihuana 10 years ago and, most recently, five days before being interviewed, on the date of his deceased mother's birthday.   The use of marihuana on a single occasion is not sufficient to establish by clear and convincing evidence that a defendant had, at the time of his classification, a history of drug abuse (see People v. Collazo, 7 A.D.3d 595, 775 N.Y.S.2d 887 [2004] ).   In our opinion, defendant's acknowledgment of isolated instances of marihuana use while in high school, over 10 years ago, and his recent one time use of marihuana, did not constitute clear and convincing evidence that defendant has a history of drug abuse (People v. Abdullah, 31 A.D.3d 515, 818 N.Y.S.2d 267 [2006] ).

 The court's assessment of 10 points based on a finding of an unsuitable housing or living situation was, however, established by clear and convincing evidence.   The presentence report noted that defendant resided in the second floor of a home, the first floor of which was occupied by young children.   Although defendant claimed that he actually had his own apartment with a separate entrance, the Probation Department was unable to verify same as defendant was not at home on the three occasions when the Department sought to conduct an in-home visit, even though defendant had been directed to be at home.   In view of the foregoing, the court properly rejected defendant's contention.

After deleting the 15 points assessed against defendant in risk factor 11 for alcohol abuse, defendant's score of 75 under the risk assessment instrument remains within the presumptive range of a level two sex offender.

 Although utilization of the risk assessment instrument will generally result in the proper classification (see People v. Dexter, 21 A.D.3d 403, 404, 799 N.Y.S.2d 807 [2005], lv. denied 5 N.Y.3d 716, 807 N.Y.S.2d 16, 840 N.E.2d 1030 [2005] ), a departure from the presumptive risk level is warranted where there exists an aggravating or mitigating factor of a kind or to a degree not otherwise taken into account by the guidelines (see People v. Abdullah, 31 A.D.3d 515, 818 N.Y.S.2d 267, supra ).   There must be clear and convincing evidence of the existence of a special circumstance to warrant a departure from the presumptive risk level (see People v. Inghilleri, 21 A.D.3d 404, 799 N.Y.S.2d 793 [2005];  People v. Guaman, 8 A.D.3d 545, 778 N.Y.S.2d 704 [2004] ).   It is our view that such factors are present under the totality of the circumstances presented herein (see People v. Abdullah, 31 A.D.3d 515, 818 N.Y.S.2d 267, supra;  see also People v. Galligan, 35 A.D.3d 691, 824 N.Y.S.2d 914 [2006] ).   Accordingly, we find that the court improvidently exercised its discretion in denying defendant's request for a departure from the presumptive risk level and, thus, defendant is reclassified a level one sex offender.

Defendant was initially charged with rape in the third degree (Penal Law § 130.25, an E felony), in that between June 19, 2004 and June 20, 2004, being about 23 years of age at the time, he engaged in “consensual” intercourse with a minor.   Subsequent thereto, defendant entered a plea of guilty to sexual misconduct (Penal Law § 130.20, a class A misdemeanor) and received a negotiated sentence of six years probation with sex offender conditions.

Following said plea, defendant was deemed a sex offender pursuant to section 168-a of the Correction law.   In accordance with the Sex Offender Registration Act (Correction Law at 6-C), a hearing was held before the court to determine defendant's appropriate risk level.   Following the hearing, the court, based upon a risk assessment instrument score of 90, concluded that defendant's presumptive risk level was moderate and found defendant to be a level two sex offender.   In addition, the court noted that it found no basis to grant defendant's counsel's application for a departure from the presumptive risk level.

After reviewing the record, it is my opinion that the court's assessment of 15 points for alcohol and drug abuse should not be disturbed.   The court based said assessment upon defendant's admission that he had started using marihuana and drinking after his parents died and he moved out of his grandmother's house to live with friends in 1996 or 1997, approximately 10 years ago.   Although defendant alleges that he stopped, he admitted that he smoked marihuana again on July 31, 2005, because it was his deceased mother's birthday.   The use of marihuana on one occasion is not sufficient to establish by clear and convincing evidence that a defendant had, at the time of his classification, a history of drug and alcohol abuse (see People v. Collazo, 7 A.D.3d 595, 775 N.Y.S.2d 887 [2004] ).   However, defendant's statement, together with his recent use of marihuana was sufficient to support the court's finding by clear and convincing evidence that he has a history of drug and alcohol abuse (cf. People v. Abdullah, 31 A.D.3d 515, 818 N.Y.S.2d 267 [2006] ).   I noted that I am in agreement with the majority that the 10 point assessment based on inappropriate living arrangements should not be disturbed.

Contrary to the majority's opinion, I am of the view that the court's denial of defendant's request for a departure from the presumptive risk level did not constitute an improvident exercise of discretion.   Defendant's failure to cooperate with probation in arranging for an inspection of his living arrangements and his admitted recent use of marihuana were, standing alone, sufficient to warrant denial of his request.

TANENBAUM and LaCAVA, JJ., concur. RUDOLPH, P.J., dissents in a separate memorandum.