| People v Leach |
| 2013 NY Slip Op 03884 [106 AD3d 1387] |
| May 30, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DavidLeach, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), forrespondent.
Lahtinen, J. Appeal from an order of the Supreme Court (Lamont, J.), enteredDecember 5, 2011 in Albany County, which classified defendant as a risk level three sexoffender pursuant to the Sex Offender Registration Act.
At a hearing to determine defendant's risk level pursuant to the Sex OffenderRegistration Act (see Correction Law art 6-C [hereinafter SORA]), SupremeCourt determined that 30 points under risk factor 3 (number of victims), 30 points underrisk factor 5 (age of victim), and 15 points under risk factor 11 (drug or alcohol abuse)should be assessed. The total of 75 points under the SORA risk assessment instrumentplaced defendant in the low end of the risk level two category. Thereafter, SupremeCourt concluded that the above risk factors did not properly assess the degree of dangerthat child pornography offenders pose to society, and found clear and convincingevidence in the assessment of the clinical psychologist and the federal presentence reportto support an upward departure to a risk level three sex offender classification.Defendant appeals.
Defendant failed to preserve his claim that his due process rights were violated as aresult of Supreme Court's assessment of 30 points under risk factor 3 inasmuch as noobjection on that ground was raised before the court (see People v Campbell, 98 AD3d 5, 9 [2012], lv [*2]denied 20 NY3d 853 [2012]). In any event, thenumerous children depicted in the images were "properly considered victims for thepurposes of SORA" (People vJohnson, 47 AD3d 140, 144 [2007], affd 11 NY3d 416 [2008]).However, we do find merit in defendant's challenge to Supreme Court's assessment of 15points under risk factor 11. Neither the federal presentence investigation report nordefendant's psychological evaluation indicated any pattern of drug or alcohol use indefendant's history (see Peoplev Arotin, 19 AD3d 845, 848 [2005]). Thus, we cannot conclude that thisevidence "establish[es] a history of drug or alcohol abuse by clear and convincingevidence" (People v Titmas,46 AD3d 1308, 1309 [2007]; see People v Irizarry, 36 AD3d 473, 473 [2007]; Peoplev Arotin, 19 AD3d at 848).
Consequently, defendant's total risk factor score must be reduced by 15 points, whichresults in a presumptive classification as a risk level one sex offender. Nevertheless,given the proof in the record and the People's submissions, we deem it appropriate underthe circumstances herein to remit the matter to Supreme Court "for consideration of anyfactors warranting an upward modification" (People v Stewart, 61 AD3d 1059, 1061 [2009]; People v Felice, 100 AD3d609, 610 [2012]; see also People v Fazio, 106 AD3d 1291 [2013]).
Peters, P.J., Rose and Garry, JJ., concur. Ordered that the order is reversed, on thelaw, without costs, and matter remitted to the Supreme Court for further proceedings notinconsistent with this Court's decision.