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

363
KA 14-00544
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

VINCENT OWENS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Monroe County Court (Victoria M.
Argento, J.), entered February 10, 2014. The order determined that
defendant is a level two 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 one risk pursuant to the Sex Offender Registration Act and as
modified the order is affirmed without costs.

     Memorandum: On appeal from an order determining that he is a
level two risk pursuant to the Sex Offender Registration Act ([SORA]
Correction Law § 168 et seq.), defendant contends that the People
failed to notify him within 10 days prior to the SORA hearing that
they intended to seek a determination different from that recommended
by the Board of Examiners of Sex Offenders (Board), as required by
Correction Law § 168-n (3), and that County Court did not otherwise
provide him with a meaningful opportunity to respond to the People’s
requested departure. We agree (see People v Scott, 96 AD3d 1430,
1430-1431). The risk assessment instrument prepared by the Board did
not assess points against defendant under risk factor 11, for having a
history of drug or alcohol abuse. At the SORA hearing, however, the
People for the first time requested that 15 points be assessed against
defendant under risk factor 11, and the court granted that request.
We need not remit the matter to County Court to comply with Correction
Law § 168-n (3) (see id. at 1431), however, inasmuch as we also 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” (People v Coger, 108 AD3d 1234, 1234-1235; see generally People
v Mingo, 12 NY3d 563, 571). Without the 15 points assessed by the
court under risk factor 11, the points assessed against defendant
under the remaining risk factors make him a presumptive level one
                                 -2-                           363
                                                         KA 14-00544

risk, and there is no basis in the record for granting an upward
departure based on an aggravating factor not taken into account by the
risk assessment guidelines (see generally People v Grady, 81 AD3d
1464, 1464). We therefore modify the order by determining that
defendant is a level one risk pursuant to SORA.




Entered:   March 27, 2015                       Frances E. Cafarell
                                                Clerk of the Court
