        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

254
KA 11-00973
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOE W. GREEN, DEFENDANT-APPELLANT.


GENESEE VALLEY LEGAL AID, GENESEO (JEANNIE D. MICHALSKI OF COUNSEL),
FOR DEFENDANT-APPELLANT.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Livingston County Court (Dennis S.
Cohen, J.), entered April 25, 2011. 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 affirmed without costs.

     Memorandum: Defendant appeals from an order determining that he
is a level three risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.). Contrary to defendant’s contention,
County Court properly assessed 15 points against him under risk factor
11 based upon his history of drug and alcohol abuse. Defendant’s
criminal history includes convictions related to drugs and alcohol,
and defendant admitted during the presentence investigation that his
lengthy criminal history was attributable to his abuse of drugs and
alcohol. Defendant further admitted that during the time period that
included the instant offense he smoked marihuana and drank alcohol
daily, usually to the point of intoxication. The court properly
concluded that “ ‘his recent history of abstinence while incarcerated
is not necessarily predictive of his behavior when no longer under
such supervision’ ” (People v Vangorder, 72 AD3d 1614, 1614).

     We agree with defendant, however, that the People failed to
present the requisite clear and convincing evidence that the victim of
the underlying crime suffered from a “mental disability” (see
generally Correction Law § 168-n [3]), and thus the court erred in
assessing 20 points against him under risk factor 6. Although the
People presented evidence that the victim was diagnosed as mildly
mentally retarded, “[t]he law does not presume that a person with
mental retardation is unable to consent to sexual [activity], . . .
and proof of incapacity must come from facts other than mental
                                 -2-                          254
                                                        KA 11-00973

retardation alone” (People v Cratsley, 86 NY2d 81, 86). Here, the
remaining evidence in the record relating to the victim’s capacity
failed to establish that she was “incapable of appraising the nature
of [her] own sexual conduct” (id. at 87; see People v Easley, 42 NY2d
50, 55-57; cf. People v Jackson, 70 AD3d 1385, 1385, lv denied 14 NY3d
714). Deducting those 20 points assessed under risk factor 6 results
in a total risk factor score of 90, and thus defendant is
presumptively a level two risk. Nevertheless, we agree with the
court’s alternative determination, consistent with the recommendation
of the Board of Examiners of Sex Offenders, that an upward departure
to a level three risk was warranted inasmuch as the risk assessment
instrument “did not fully take into account the number and nature of
defendant’s prior crimes” (People v Stevens, 4 AD3d 786, 787, lv
denied 2 NY3d 705).




Entered:   March 15, 2013                      Frances E. Cafarell
                                               Clerk of the Court
