People v. Titmas

46 A.D.3d 1308, 848 N.Y.S.2d 776

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 2007
• Status: Published

Opinion

Crew III, J.

Appeal from an order of the County Court of Sullivan County (LaBuda, J.), entered April 24, 2006, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act.

Defendant pleaded guilty to one count of sodomy in the first degree in 2001 and ultimately was sentenced to a term of imprisonment of five years to be followed by five years of postrelease supervision. In anticipation of his release from prison, a risk assessment instrument was prepared by the Board of Examiners of Sex Offenders in which defendant was assigned 110 points, thus presumptively placing him at a risk level three classification. Following a hearing, County Court adopted the Board’s recommendation and defendant was classified a risk level three sex offender, prompting this appeal.

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Defendant contends that County Court improperly assigned an additional 15 points to his risk assessment score for his history of drug and alcohol abuse. We agree. The record reflects that defendant was an occasional user of marihuana, last having smoked that substance seven years prior to County Court’s classification, and that he had tried LSD on one occasion six years prior to said classification. The record further reflects that defendant was an occasional user of alcohol. Such evidence does not establish a history of drug or alcohol abuse by clear and convincing evidence (see e.g. People v Irizarry, 36 AD3d 473 [2007]; People v Collazo, 7 AD3d 595, 596 [2004]).

Cardona, P.J., Mugglin, Rose and Kane, JJ., concur. Ordered that the order is reversed, on the law, without costs, and defendant is classified as a risk level two sex offender under the Sex Offender Registration Act.

We reject the People’s contention that this appeal is untimely inasmuch as there is no evidence that defendant was served with County Court’s order in accordance with the requirements of CPLR 5513 (a) (see Matter of Reynolds v Dustman, 1 NY3d 559, 560 [2003]).