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

6
KA 10-00176
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL FAUL, DEFENDANT-APPELLANT.


ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),
FOR DEFENDANT-APPELLANT.

DONALD H. DODD, DISTRICT ATTORNEY, OSWEGO (MICHAEL G. CIANFARANO OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Oswego County Court (John J. Elliott,
A.J.), entered December 2, 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.). We 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 (see
generally § 168-n [3]). We thus conclude that County Court erred in
assessing 15 points on the risk assessment instrument (RAI) for risk
factor 11, and that his score on the RAI must be reduced from 110 to
95, rendering him a presumptive level two risk. We therefore modify
the order accordingly.

     The case summary presented by the People at the SORA hearing
stated that defendant had previously been asked to leave his father’s
house because of alcohol abuse and his lack of a job. Although the
case summary further stated that defendant was scored “non-alcoholic”
on the Michigan Alcohol Screening test (cf. People v Johnson, 77 AD3d
548; People v Gonzalez, 48 AD3d 284, lv denied 10 NY3d 711), he
nevertheless was recommended for a chemically dependent sex offender
treatment program (see People v Abrams, 76 AD3d 1058, 1059), and the
court relied upon defendant’s attendance in that program for its
determination that the assessment of 15 points was warranted under
risk factor 11. The People also presented the presentence report
(PSR), which stated that defendant did not have a history of drug or
                                 -2-                             6
                                                         KA 10-00176

alcohol abuse; that he drank alcohol only occasionally; and that his
father asked him to leave his residence because of alcohol use. The
PSR is consistent with defendant’s testimony at the SORA hearing,
wherein he denied having a problem with alcohol or drugs, and he
further testified that his father did not approve of his consumption
of alcohol and that he drank alcohol occasionally with friends and had
used marihuana only once or twice when he was 18 years old (cf. People
v Abrams, 76 AD3d 1058, 1058-1059; People v Urbanski, 74 AD3d 1882, lv
denied 15 NY3d 707; People v Murphy, 68 AD3d 832, lv dismissed 14 NY3d
812). In addition, defendant testified that he participated in the
chemically dependent sex offender treatment program in order to
complete his program requirements.

     The SORA risk assessment guidelines and commentary for risk
factor 11 state that “[a]lcohol and drug abuse are highly associated
with sex offending . . . [According to the relevant literature] . . .,
it serves as a disinhibitor and therefore is a precursor to offending
. . . The category focuses on the offender’s history of abuse and the
circumstances at the time of the offense. It is not meant to include
occasional social drinking” (Sex Offender Registration Act: Risk
Assessment Guidelines and Commentary, at 15 [2006 ed]). We note that
the fact that alcohol was not a factor in the underlying offense is
not dispositive inasmuch as the guidelines further provide that “[a]n
offender need not be abusing alcohol or drugs at the time of the
instant offense to receive points in this category” (id.).

     We conclude that the case summary provided “only very limited
information about [defendant’s] alleged prior history of drug and
alcohol abuse” and that the PSR did not provide evidence of a history
of alcohol or drug abuse (People v Mabee, 69 AD3d 820, 820, lv denied
15 NY3d 703). Thus, the People failed to meet their burden of
establishing by clear and convincing evidence that defendant had a
history of alcohol or drug abuse.




Entered:   February 10, 2011                   Patricia L. Morgan
                                               Clerk of the Court
