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

101
KA 13-01803
PRESENT: SMITH, J.P., CARNI, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBERT MERKLEY, DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARTIN P. MCCARTHY, II, OF
COUNSEL), FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Ontario County Court (Frederick G.
Reed, A.J.), entered September 18, 2013. 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: On appeal from an order determining that he is a
level three risk pursuant to the Sex Offender Registration Act ([SORA]
Correction Law § 168 et seq.), defendant contends that County Court
erred in assessing 15 points against him under risk factor 11 based
upon his history of drug and alcohol abuse. We reject that
contention. The evidence admitted without objection at the SORA
hearing included the case summary, prepared by the Board of Examiners
of Sex Offenders, and defendant’s presentence report. According to
the case summary, defendant stated that he “first used mari[h]uana at
age 14 and was using it on a daily basis,” and that he used cocaine
“every couple of days.” Defendant also admitted that he used vicodin
and various other narcotic drugs on a daily basis. Defendant made
similar admissions to the probation officer who interviewed him in
preparing the presentence report. We conclude that the “statements in
the case summary and presentence report with respect to defendant’s
substance abuse constitute reliable hearsay supporting the court’s
assessment of points for history of drug or alcohol abuse” (People v
Ramos, 41 AD3d 1250, 1250, lv denied 9 NY3d 809; see People v St.
Jean, 101 AD3d 1684, 1684).

     Although we agree with defendant that the court should have
applied a preponderance of the evidence standard to his request for a
downward departure, rather than a clear and convincing evidence
standard (see People v Gillotti, 23 NY3d 841, 860-861), we need not
                                 -2-                           101
                                                         KA 13-01803

remit the matter because the record is sufficient to enable us to
review defendant’s contention under the proper standard (see generally
People v Urbanski, 74 AD3d 1882, 1883, lv denied 15 NY3d 707). We
conclude that defendant failed to meet that standard inasmuch as he
did not establish the existence of any mitigating factors warranting a
downward departure from his risk level (see People v Nethercott, 119
AD3d 918, 918, lv denied 24 NY3d 908; People v Worrell, 113 AD3d 742,
742-743).




Entered:   February 13, 2015                   Frances E. Cafarell
                                               Clerk of the Court
