| People v Titmas |
| 2007 NY Slip Op 10453 [46 AD3d 1308] |
| December 27, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Eric Titmas,Appellant. |
—[*1] Stephen F. Lungen, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Crew III, J. Appeal from an order of the County Court of Sullivan County (LaBuda, J.),entered April 24, 2006, which classified defendant as a risk level three sex offender pursuant tothe Sex Offender Registration Act.
Defendant pleaded guilty to one count of sodomy in the first degree in 2001 and ultimatelywas sentenced to a term of imprisonment of five years to be followed by five years of postreleasesupervision. In anticipation of his release from prison, a risk assessment instrument was preparedby the Board of Examiners of Sex Offenders in which defendant was assigned 110 points, thuspresumptively placing him at a risk level three classification. Following a hearing, County Courtadopted the Board's recommendation and defendant was classified a risk level three sex offender,prompting this appeal.[FN*][*2]
Defendant contends that County Court improperlyassigned an additional 15 points to his risk assessment score for his history of drug and alcoholabuse. We agree. The record reflects that defendant was an occasional user of marihuana, lasthaving smoked that substance seven years prior to County Court's classification, and that he hadtried LSD on one occasion six years prior to said classification. The record further reflects thatdefendant was an occasional user of alcohol. Such evidence does not establish a history of drugor alcohol abuse by clear and convincing evidence (see e.g. People v Irizarry, 36 AD3d 473 [2007]; People v Collazo, 7 AD3d 595,596 [2004]).
Cardona, P.J., Mugglin, Rose and Kane, JJ., concur. Ordered that the order is reversed, onthe law, without costs, and defendant is classified as a risk level two sex offender under the SexOffender Registration Act.
Footnote *: We reject the People'scontention that this appeal is untimely inasmuch as there is no evidence that defendant wasserved with County Court's order in accordance with the requirements of CPLR 5513 (a) (see Matter of Reynolds v Dustman, 1NY3d 559, 560 [2003]).