SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
815
KA 12-01646
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND LINDLEY, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
BENNIE COGER, DEFENDANT-APPELLANT.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR
DEFENDANT-APPELLANT.
JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
COUNSEL), FOR RESPONDENT.
Appeal from an order of the Orleans County Court (James P. Punch,
J.), entered June 28, 2012. The order determined that defendant is a
level three risk pursuant to the Sex Offender Registration Act.
It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by determining that defendant is a
level two risk pursuant to the Sex Offender Registration Act and as
modified the order is affirmed without costs.
Memorandum: Defendant appeals from an order determining that he
is a level three risk pursuant to the Sex Offender Registration Act
([SORA] Correction Law § 168 et seq.). We agree with defendant that
the People failed to prove by the requisite clear and convincing
evidence that he had a history of alcohol and drug abuse, i.e., risk
factor 11 on the risk assessment instrument (RAI) (see generally §
168-n [3]; People v Mingo, 12 NY3d 563, 571). In the case summary
presented by the People at the SORA hearing, the Board of Examiners of
Sex Offenders (Board) indicated that defendant was assessed with 15
points on the RAI for a history of alcohol and drug abuse because
“Probation identified [defendant’s] continued drug and alcohol use as
problematic, and he refused to attend treatment for th[at] problem.”
The presentence investigation report, upon which the Board relied for
the 15-point assessment, stated merely that “[i]ssues identified by
Probation included continued drug and alcohol use” and that defendant
refused substance abuse treatment. There is, however, no evidence
that defendant was ever screened for substance abuse issues (cf.
People v Madera, 100 AD3d 1111, 1112; People v Faul, 81 AD3d 1246,
1247), “only very limited information about his alleged prior history
of drug and alcohol abuse” (People v Mabee, 69 AD3d 820, 820, lv
denied 15 NY3d 703), and no information about what treatment was
recommended or why treatment was recommended (see Madera, 100 AD3d at
1112; Faul, 81 AD3d at 1247). Under these circumstances, the case
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KA 12-01646
summary alone is insufficient “to satisfy the People’s burden of
establishing that risk factor by clear and convincing evidence”
(Madera, 100 AD3d at 1112; see Faul, 81 AD3d at 1247-1248; Mabee, 69
AD3d at 820; see also People v Judson, 50 AD3d 1242, 1243).
Further, defendant’s prior convictions for criminal possession
and sale of marihuana and criminal possession of a controlled
substance in the seventh degree do not constitute clear and convincing
evidence that defendant used drugs, let alone that he had a history of
abusing them (see Madera, 100 AD3d at 1112; People v Irizarry, 36 AD3d
473, 473; People v Collazo, 7 AD3d 595, 596; cf. People v Abrams, 76
AD3d 1058, 1058-1059, lv denied 16 NY3d 703; People v Vaughn, 26 AD3d
776, 777). During the presentence investigation, defendant never
admitted to using drugs or alcohol, and he denied abusing any
substances at the SORA hearing (cf. People v Zimmerman, 101 AD3d 1677,
1678; People v Mundo, 98 AD3d 1292, 1293, lv denied 20 NY3d 855;
People v Urbanski, 74 AD3d 1882, 1883, lv denied 15 NY3d 707).
Defendant’s admission that he was intoxicated during a previous
incident, which led to a rape charge that was subsequently dismissed,
is insufficient to establish that his sexual misconduct can “be
characterized by repetitive and compulsive behavior[] associated with
drugs or alcohol” (Correction Law § 168-l [5] [a] [ii]), especially
because defendant does not have any other history of intoxication with
respect to his sexual offenses, including the instant offenses (see
People v Palmer, 20 NY3d 373, 378-379; People v Vasquez, 49 AD3d 1282,
1283). Consequently, as noted, the People failed to meet their burden
of establishing by clear and convincing evidence that defendant had a
history of alcohol or drug abuse (see Palmer, 20 NY3d at 378-380;
Faul, 81 AD3d at 1247-1248). We thus conclude that County Court erred
in assessing 15 points on the RAI for risk factor 11 and that
defendant’s score on the RAI must be reduced from 110 to 95, rendering
him a presumptive level two risk. We therefore modify the order
accordingly.
Entered: July 19, 2013 Frances E. Cafarell
Clerk of the Court