| People v McLean |
| 2008 NY Slip Op 07813 [55 AD3d 973] |
| October 16, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Alexander K.McLean, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Victoria Esposito-Shea of counsel), forrespondent.
Cardona, P.J. Appeal from an order of the County Court of St. Lawrence County (Richards, J.),entered July 2, 2007, which classified defendant as a risk level two sex offender pursuant to the SexOffender Registration Act.
Defendant waived indictment and pleaded guilty to a superior court information charging him withsexual abuse in the first degree. County Court thereafter sentenced defendant to a negotiated term ofsix months in jail with 10 years of probation. After rendering sentence on July 2, 2007, the court held ahearing that same day to determine defendant's status pursuant to the Sex Offender Registration Act(see Correction Law art 6-C). Thereafter, the court classified defendant as a risk level two sexoffender.
Convicted sex offenders facing risk level classifications have certain due process rights that havebeen incorporated into the statutory scheme (see People v Brooks, 308 AD2d 99, 103[2003], lv denied 1 NY3d 502 [2003]). Correction Law § 168-n (3) provides, amongother things, that they be given notice of the classification proceeding as well as the classificationrecommendation received from the Board of Examiners of Sex Offenders. Here, it is undisputed thatdefendant was not provided with all of the necessary information mandated by the statute (see People v Brooksvasquez, 24 AD3d644, 644 [2005]). However, inasmuch as defendant failed to object to the procedure, he did notpreserve these contentions for appellate review (see [*2]People v Charache, 9 NY3d829, 830 [2007]).
Turning to the merits, defendant argues that County Court erred in assessing him 10 points on hisrisk assessment for his living situation. Upon review of the record, we agree. Notably, risk factor 15 ofthe risk assessment instrument permits a defendant to be assessed 10 points if the proposed livingsituation is inappropriate. However, it has been held that a living situation does not meet that standardmerely because it is "uncertain" or the defendant may be homeless (People v Ruddy, 31 AD3d 517, 518 [2006], lv denied 7 NY3d714 [2006]; see People v Nichols, 52AD3d 799 [2008]). Here, the only proof in the record as to this issue is defendant's statementduring his presentence evaluation that he was not sure where he would reside once he was released butwould possibly live with his father. Inasmuch as this proof did not satisfy the burden of showing by clearand convincing evidence that defendant's living situation was inappropriate, those 10 points must besubtracted from the total of 80 points assessed by County Court. Since the resulting 70 points results ina classification as a risk level one sex offender, defendant's assessment must be revised accordingly(see People v Ruddy, 31 AD3d at 518).
Mercure, Spain, Lahtinen and Malone Jr., JJ., concur. Ordered that the order is reversed, on thelaw, without costs, and defendant is classified as a risk level one sex offender under the Sex OffenderRegistration Act.