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People v. Schlau

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 19, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JAMES SCHLAU, DEFENDANT-APPELLANT.

Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about November 20, 2007, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Saxe, Sweeny, Acosta, Freedman, JJ.

99074/07

The court properly assessed defendant 15 points for history of drug or alcohol abuse based on his admissions to correctional officials and the results of a diagnostic assessment (see People v Reyes, 48 AD3d 267, 268 [2008], lv denied 10 NY3d 711 [2008]). The evidence of a single recent negative test for substance abuse, following defendant's extensive periods of incarceration, was insufficient to predict his behavior when no longer under supervision (see People v Gonzalez, 48 AD3d 284 [2008], lv denied 10 NY3d 711 [2008]).

The court properly found clear and convincing evidence of aggravating factors supporting the court's discretionary upward departure. The risk assessment instrument did not adequately account for the full extent of defendant's prior record (see People v Wilkens, 33 AD3d 399 [2006], lv denied 8 NY3d 801 [2007]) and the serious circumstances of the current offense requiring registration (see People v Ellis, 52 AD3d 1272 [2008], lv denied 11 NY3d 707 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090319

© 1992-2009 VersusLaw Inc.



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