People v. Davis
| Decision Date | 28 January 2016 |
| Citation | 23 N.Y.S.3d 492,135 A.D.3d 1256 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Jimmy DAVIS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
135 A.D.3d 1256
23 N.Y.S.3d 492
The PEOPLE of the State of New York, Respondent,
v.
Jimmy DAVIS, Appellant.
Supreme Court, Appellate Division, Third Department, New York.
Jan. 28, 2016.
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.
Before: PETERS, P.J., GARRY, ROSE and DEVINE, JJ.
GARRY, J.
Appeal from an order of the Supreme Court (Breslin, J.), entered July 31, 2013 in Albany County, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.
In 1988 in Colorado, defendant pleaded guilty to sexual assault in the second degree and was sentenced to six years in prison. After his release from prison, defendant relocated to Albany County and was required to register as a sex offender. To that end, the People submitted a risk assessment instrument pursuant to the Sex Offender Registration Act (see Correction Law art 6–C), which assessed 120 points against defendant and presumptively classified him as a risk level III sex offender. Following a hearing, Supreme Court declined defendant's request for a downward departure and classified defendant as a risk level III sex offender. Defendant appeals.
Defendant contends that his risk level III classification is not supported by clear and convincing evidence, particularly with regard to the assignment of 15 points in risk factor 11 for history of drug and alcohol abuse. We agree. The People bear the burden of proving the facts supporting the determination of a defendant's risk level by "clear and convincing evidence" (Correction Law § 168–n[3] ; see People v. Mingo, 12 N.Y.3d 563, 571, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ). Here, there is no indication in the record that drugs or alcohol played a role in the instant offense. In assessing defendant points for a history of drug and alcohol abuse, the People relied on...
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