| People v McClam |
| 2009 NY Slip Op 04516 [63 AD3d 1588] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Joseph G.McClam, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Jeffrey L. Taylor of counsel), forrespondent.
Appeal from an order of the Ontario County Court (William F. Kocher, J.), entered January25, 2008. The order determined that defendant is a level two risk pursuant to the Sex OffenderRegistration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order determining that he is a level two risk pursuant tothe Sex Offender Registration Act (Correction Law § 168 et seq.), defendantcontends that County Court's determination with respect to the risk factor for drug or alcoholabuse is not supported by the requisite clear and convincing evidence (see § 168-n[3]). We reject that contention. An assessment of 15 points is warranted under that risk factorwhere "an offender has a substance abuse history or was abusing drugs and or alcohol at the timeof the offense" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at15 [2006]), and here the record establishes that defendant had a history of drug and alcoholabuse, including several prior convictions for possession of marihuana. In addition, the presentoffense involved the purchase of alcohol for a minor and consumption of alcohol with thatminor. As the People correctly concede, the court erred in assessing 15 points rather than fivepoints under the risk factor for the number and nature of prior crimes and 10 points under therisk factor for the recency of prior felonies or sex crimes. After reducing the total risk factorscore by the 20 points improperly assessed under those factors, however, we conclude that"defendant nevertheless is presumptively classified as a level [two] risk, and there are nomitigating circumstances to warrant a downward departure from the presumptive risk level" (People v Harris, 46 AD3d 1445,1446 [2007], lv denied 10 NY3d 707 [2008]). Present—Scudder, P.J., Hurlbutt,Peradotto, Green and Gorski, JJ.