State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 28, 2016 519803 

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THE PEOPLE OF THE STATE OF 

NEW YORK, 

Respondent, 

v MEMORANDUM AND ORDER

JIMMY DAVIS, 

Appellant.

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Calendar Date: December 15, 2015

Before: Peters, P.J., Garry, Rose and Devine, JJ.

__________

James P. Milstein, Public Defender, Albany (Theresa M.

Suozzi of counsel), for appellant.

P. David Soares, District Attorney, Albany (Michael C.

Wetmore of counsel), for respondent.

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Garry, J.

Appeal from an order of the Supreme Court (Breslin, J.),

entered July 31, 2013 in Albany County, which classified

defendant as a risk level III sex offender pursuant to the Sex

Offender Registration Act.

In 1988 in Colorado, defendant pleaded guilty to sexual

assault in the second degree and was sentenced to six years in

prison. After his release from prison, defendant relocated to

Albany County and was required to register as a sex offender. To

that end, the People submitted a risk assessment instrument

pursuant to the Sex Offender Registration Act (see Correction Law

art 6-C), which assessed 120 points against defendant and

presumptively classified him as a risk level III sex offender. 
-2- 519803 

Following a hearing, Supreme Court declined defendant's request

for a downward departure and classified defendant as a risk level

III sex offender. Defendant appeals.

Defendant contends that his risk level III classification

is not supported by clear and convincing evidence, particularly

with regard to the assignment of 15 points in risk factor 11 for

history of drug and alcohol abuse. We agree. The People bear

the burden of proving the facts supporting the determination of a

defendant's risk level by "clear and convincing evidence"

(Correction Law § 168-n [3]; see People v Mingo, 12 NY3d 563, 571

[2009]). Here, there is no indication in the record that drugs

or alcohol played a role in the instant offense. In assessing

defendant points for a history of drug and alcohol abuse, the

People relied on defendant's failure to comply with a parole

condition that he attend a drug and alcohol treatment program. 

There is, however, no information to indicate that defendant was

screened for substance abuse issues nor does the record reflect

any reason why substance abuse treatment was a condition to

parole (see People v Coger, 108 AD3d 1234, 1235 [2013]). 

Furthermore, the condition placed on defendant over 20 years ago

is excessively remote (see People v Ross, 116 AD3d 1171, 1172

[2014]; People v Irizarry, 36 AD3d 473, 473 [2007]). Absent

other evidence demonstrating a history of substance abuse, we

find that the People failed to establish by clear and convincing

evidence that the 15-point assessment for history of drug and

alcohol abuse is proper (see People v Palmer, 20 NY3d 373, 378-

380 [2013]; People v Mabee, 69 AD3d 820, 820 [2010], lv denied 15

NY3d 703 [2010]; compare People v Brownell, 66 AD3d 1060, 1061

[2009]). Accordingly, defendant's score on the risk assessment

instrument would be reduced from 120 to 105, rendering him a

presumptive risk level II sex offender. Nevertheless, the record

reflects that Supreme Court also factored in that the risk

assessment instrument did not include points for defendant's

felony conviction of failure to register, for which 10 points are

assessed, and this would elevate defendant's risk assessment

level. In view of this, we decline to disturb the classification

of defendant as a risk level III sex offender. Defendant's

remaining contentions, to the extent that they are properly

before us, are unpersuasive. 
-3- 519803 

Peters, P.J., Rose and Devine, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court