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

217
KA 09-01225
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROGER L. HUEBER, DEFENDANT-APPELLANT.


MATTHEW E. BROOKS, LOCKPORT, FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Niagara County Court (Sara S.
Sperrazza, J.), entered September 15, 2008. 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 85 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 agree with defendant
that the court erred in assessing 15 points against him under risk
factor 11, for drug and alcohol abuse (see Sex Offender Registration
Act: Risk Assessment Guidelines and Commentary, at 15 [2006]). At
the SORA hearing, the People “bear the burden of proving the facts
supporting the [risk level classification] sought by clear and
convincing evidence” (§ 168-n [3]; see People v Wroten, 286 AD2d 189,
199, lv denied 97 NY2d 610). Although the record establishes that
defendant used alcohol socially and that he and the victims consumed
alcohol prior to some of the offenses, the record is devoid of clear
and convincing evidence that defendant abused alcohol, had any prior
offenses related to alcohol or drugs or had ever sought or been
recommended for alcohol or drug treatment (see Risk Assessment
Guidelines and Commentary, at 15; cf. People v Green, 71 AD3d 1499, lv
denied 14 NY3d 713; People v McClam, 63 AD3d 1588, lv denied 13 NY3d
704; People v Longtin, 54 AD3d 1110, lv denied 11 NY3d 714). As a
result of the court’s error, defendant’s total risk factor score
                                 -2-                           217
                                                         KA 09-01225

should have been 70 points, and he thus should have been presumptively
classified as a level one risk (see generally People v Aldrich, 56
AD3d 1228).

     We reject defendant’s further contention, however, that an upward
departure from his presumptive risk level was not warranted. We
therefore modify the order by determining that defendant is a level
two risk. “A court may make an upward departure from a presumptive
risk level when, ‘after consideration of the indicated factors . .
.[,] there exists an aggravating . . . factor of a kind, or to a
degree, not otherwise adequately taken into account by the [risk
assessment] guidelines’ ” (People v Cruz, 28 AD3d 819, 819; see People
v May, 77 AD3d 1388). Here, the People established by clear and
convincing evidence several factors not taken into account by the risk
assessment guidelines that were “indicative that [defendant] poses an
increased risk to public safety” (Risk Assessment Guidelines and
Commentary, at 14).




Entered:   February 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
