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

536
KA 10-00825
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DUSTIN M. MOORE, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM
OF COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Cattaraugus County Court (Larry M.
Himelein, J.), entered December 8, 2009. 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.). Based upon the total risk
factor score of 80 points on the risk assessment instrument, defendant
was presumptively classified as a level two risk. County Court
thereafter determined that an upward departure was warranted and
classified defendant as a level three risk. We reject defendant’s
contention that the court erred in assessing points against him under
the risk factor for drug or alcohol abuse, inasmuch as the case
summary established that defendant had a history of drug and alcohol
abuse (see People v Carlton, 78 AD3d 1654, 1655, lv denied 16 NY3d
782). Indeed, defendant admitted that he began using marihuana at
approximately age 12 and crack or cocaine at age 17 and that he had
experimented with hallucinogenic mushrooms and had been addicted to
painkillers.

     The People correctly concede, however, that the court erred in
assessing 15 points against defendant under the risk factor for his
supervision after being released from prison and that defendant should
have been assessed no more than 5 points under that risk factor. As a
result of that error, the total risk factor score should have been 70
and thus defendant should have been presumptively classified as a
                                 -2-                           536
                                                         KA 10-00825

level one risk. We nevertheless conclude that an upward departure
from that risk level is warranted because defendant acknowledged that
he is unable to control his sexual urges, and the record establishes
that defendant would be unlikely to obtain the necessary treatment if
it is not mandated (see generally People v Hueber, 81 AD3d 1466;
People v Mallaber, 59 AD3d 989, lv denied 12 NY3d 710). We therefore
modify the order by determining that defendant is a level two risk
pursuant to SORA.




Entered:   April 29, 2011                       Patricia L. Morgan
                                                Clerk of the Court
