| People v McFarland |
| 2014 NY Slip Op 06273 [120 AD3d 1121] |
| September 23, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Appellant, v Elias McFarland, Respondent. |
Cyrus R. Vance, Jr., District Attorney, New York (Eleanor Ostrow of counsel), forappellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Lorca Morello ofcounsel), for respondent.
Order, Supreme Court, New York County (Daniel P. Conviser, J.), entered on orabout June 21, 2012, which granted defendant's Correction Law§ 168-o (2) petition and modified his sex offender classificationfrom a level three sexually violent offender to level two, unanimously reversed, on thelaw, without costs, the petition denied, and defendant's original classificationreinstated.
While we recognize that a court has discretion to grant a modification of a sexoffender classification, the court improvidently exercised such discretion in this case.Defendant failed to meet his burden under Correction Law § 168-o(2) of presenting clear and convincing evidence that a downward modification of his risklevel is warranted.
Defendant's apparent sobriety while incarcerated and during the first 17 months afterhis release to parole supervision was not a reliable predictor of his risk for reoffense, orof the threat he poses to public safety, in light of his extensive history of alcohol abuseand prior parole violations for alcohol-related offenses (see People v Watson, 112AD3d 501, 502-503 [1st Dept 2013], lv denied 22 NY3d 863 [2014]; People v Gonzalez, 48 AD3d284, 285 [1st Dept 2008], lv denied 10 NY3d 711 [2008]). Defendant's age(76 years) at the time of his release was not a reliable factor in determining his risk ofreoffending, notwithstanding actuarial evidence, since defendant committed his mostrecent sex offense (a violent attack on an 86-year-old woman) at the age of 68 (see People v Harrison, 74AD3d 688 [1st Dept 2010], lv denied 15 NY3d 711 [2010]). Furthermore,defendant's relationship with his wife was not sufficiently shown to be a mitigating factorsince he was married to, and living with, his wife in 2002 when he committed his mostrecent sex offense. The impact that defendant's level three designation had on his abilityto reside with his wife at the senior citizen housing facility they shared before his mostrecent conviction had no bearing on defendant's risk of a repeat offense or the threat heposed to the public safety (see Correction Law § 168-l[5]).
The remaining factors considered by the court involved matters already adequatelytaken [*2]into consideration by the guidelines, and thusdid not warrant a departure from the presumptive risk level. Moreover, defendantexpressly stated in his petition that he was not challenging the point assessment andpresumptive risk level determination made by the court at his original classificationhearing. Concur—Mazzarelli, J.P., Renwick, Andrias, Richter and Feinman, JJ.[Prior Case History: 35 Misc 3d 1243(A), 2012 NY Slip Op 51137(U).]