| People v Madera |
| 2012 NY Slip Op 07340 [100 AD3d 1111] |
| November 8, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v PedroL. Madera Jr., Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), forrespondent.
Garry, J. Appeal from an order of the Supreme Court (Lamont, J.), entered March 25, 2011in Albany County, which classified defendant as a risk level three sex offender pursuant to theSex Offender Registration Act.
While defendant was incarcerated in the Albany County jail on unrelated charges, it wasdetermined that he had established residence in New York and had committed an offense inanother jurisdiction that required his registration as a sex offender. Accordingly, the Board ofExaminers of Sex Offenders prepared a risk assessment instrument pursuant to the Sex OffenderRegistration Act (see Correction Law art 6-C) recommending that defendant be classifiedas a risk level three sex offender. Following a hearing, Supreme Court made several adjustmentsto defendant's risk factor score, but ultimately adopted the Board's recommendation. Defendantappeals, and we affirm.
The proper risk level classification must be established by the People by clear and convincingevidence, which may include reliable hearsay evidence such as a presentence investigation report,risk assessment instrument or case summary (see People v McFall, 93 AD3d 962, 963 [2012]; People v Good, 88 AD3d 1037,1037 [2011], lv denied 18 NY3d 802 [2011]). Supreme Court's assessment of 10 pointsfor unsatisfactory conduct while under supervision is [*2]wellsupported by defendant's testimony that while on probation in Connecticut, he left thejurisdiction and went to Michigan to visit family without telling his probation officer.Additionally, the record reveals that defendant violated that probation a second time, resulting ina revocation and the imposition of a 33-month prison sentence, and that he formerly violatedparole in New York after his incarceration for unrelated charges. The court also properly assessed15 points for release without supervision, as defendant's testimony and the case summaryestablish that he was released from confinement in Connecticut in April 2010 with no postreleasesupervision. Fifteen points were properly assessed for the number of victims, as the casesummary and police records show that—in addition to the two victims that defendantadmits to assaulting—he assaulted a third victim, a 14-year-old girl, by kissing her andplacing his hand on her buttocks.
We agree with defendant that he was erroneously assessed 15 points for a history of drug andalcohol abuse. While the case summary stated that defendant scored in the alcoholic range on ascreening test and completed a substance abuse program "[w]hile in prison in New York State,"there is no further information about when and where the test was performed or in whichprogram defendant participated. The only other evidence presented was defendant's convictionfor criminal possession of a controlled substance in the seventh degree, which Supreme Courtacknowledged did not prove that defendant used drugs. Thus, we find the case summary alonewas not sufficient to satisfy the People's burden of establishing that risk factor by clear andconvincing evidence (see People vMabee, 69 AD3d 820, 820 [2010], lv denied 15 NY3d 703 [2010]; People v Irizarry, 36 AD3d 473,473 [2007]). Nonetheless, subtracting those 15 points results in a score of 155; this lies squarelywithin the presumptive risk level three category and, accordingly, we decline to disturb SupremeCourt's determination (see People vMeyer, 75 AD3d 666, 667 [2010]; People v Mabee, 69 AD3d at 820).
We have examined defendant's remaining contentions and find them to be unpreserved orwithout merit.
Mercure, J.P., Spain, Stein and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.