| People v Conway |
| 2008 NY Slip Op 00349 [47 AD3d 492] |
| January 17, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Joseph Conway, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Nicole Beder of counsel), forrespondent.
Order, Supreme Court, New York County (Renee A. White, J.), entered on or about April 18,2006, which adjudicated defendant a level three sex offender pursuant to the Sex OffenderRegistration Act (Correction Law art 6-C), unanimously affirmed, without costs.
The People met their burden of establishing, by clear and convincing evidence, risk factorsbearing sufficient total points to support a level three sex offender adjudication. The 15 point riskfactor of drug or alcohol abuse was established by reliable hearsay (see People v Dort, 18 AD3d 23[2005], lv denied 4 NY3d 885 [2005]), including the felony complaint (see People v Moore, 16 AD3d 190[2005], lv denied 4 NY3d 889 [2005]) stating that a vial of crack cocaine was recoveredfrom defendant at the time of his arrest (as to which there was no claim that it was not fordefendant's own use), the risk assessment instrument, the record of defendant's recent history ofmarijuana sales and the "report on convicted prisoner" prepared by the prosecutor just aftersentencing (cf. People v Hines, 24AD3d 524 [2005], lv denied 6 NY3d 712 [2006] [probation report and casesummary held reliable hearsay]). In addition, at the classification hearing it was undisputed thatthe grand jury testimony showed defendant had been drinking at the time of the underlying sexcrime. Defendant failed to demonstrate, by clear and convincing evidence, special circumstanceswarranting a downward departure (seePeople v Guaman, 8 AD3d 545 [2004]). Concur—Mazzarelli, J.P., Andrias,Catterson and McGuire, JJ.