| People v Waleski |
| 2008 NY Slip Op 02354 [49 AD3d 1271] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Kevin M.Waleski, Appellant. |
—[*1] Lawrence Friedman, District Attorney, Batavia (Kevin T. Finnell of counsel), forrespondent.
Appeal from an order of the Genesee County Court (Robert C. Noonan, J.), enteredDecember 27, 2006. The order determined that defendant is a level two risk pursuant to the SexOffender Registration Act.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydetermining that defendant is a level one risk pursuant to the Sex Offender Registration Act andas modified the order is affirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level two riskpursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). Weagree with defendant that County Court erred in adopting the recommendation of the Board ofExaminers of Sex Offenders that an upward departure from a level one to a level two risk waswarranted based upon the failure of defendant to address his alcohol and marihuana use. "Thecourt's reliance on defendant's history of drug and alcohol abuse to justify the upward departurefrom the presumptive risk level was improper because defendant's history of substance abuse wasalready taken into account when defendant was assessed maximum points for that history in therisk assessment instrument" (People vPerkins, 35 AD3d 1167, 1168 [2006]; see People v Mount, 17 AD3d 714, 715 [2005]). In addition, wenote that defendant successfully participated in a sex offender treatment program whileincarcerated. We therefore conclude that the court's determination of defendant's risk level is notsupported by the requisite clear and convincing evidence (see Correction Law §168-n [3]; cf. People v Carswell, 8AD3d 1073 [2004], lv denied 3 NY3d 607 [2004]), and we modify the orderaccordingly. Present—Scudder, P.J., Martoche, Smith, Green and Gorski, JJ.