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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Edwin IRIZARRY, Defendant-Appellant.

Decided: January 11, 2007

ANDRIAS, J.P., FRIEDMAN, SULLIVAN, NARDELLI, MALONE, JJ. Laura R. Johnson, The Legal Aid Society, New York (Michael C. Taglieri of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Gary S. Snitow of counsel), for respondent.

Order, Supreme Court, New York County (Ruth L. Sussman, J.), entered on or about April 4, 2005, which adjudicated defendant a level three sex offender under the Sex Offender Registration Act (Correction Law art. 6-C), unanimously reversed, on the law, without costs, and the adjudication vacated and replaced with an adjudication of defendant as a level two sex offender.

The court incorrectly assessed 15 points under the risk factor of history of drug abuse, since the People's proof did not establish that factor by clear and convincing evidence (see People v. Collazo, 7 A.D.3d 595, 775 N.Y.S.2d 887 [2004] ).   The only evidence relating to drug abuse consisted of defendant's 1997 conviction of criminal possession of a controlled substance in the seventh degree, and his 1983 conviction of disorderly conduct arising out of a misdemeanor drug arrest.   Both convictions were excessively remote under the circumstances, and the 1983 conviction was not even a drug conviction.   The People offered no other evidence, whether in the form of a probation report or otherwise, to demonstrate that defendant had a substance abuse problem.   Without the improperly assessed points, defendant qualifies as a level two offender.