Anna Pervukhin, for appellant.
Adam M. Koelsch, for respondent.
Vincent F. Gugino, for appellant.
David A. Heraty, for respondent.
LIPPMAN, Chief Judge
Under the Sex Offender Registration Act (SORA), Guidelines, and commentary, offenders are assessed 15 points under risk factor 11 if they have a history of drug or alcohol abuse or if they were abusing drugs or alcohol at the time of the sex offense. At issue in these two appeals is the extent of proof necessary to constitute clear and convincing evidence of "drug or alcohol abuse" under the SORA Guidelines. As the proof in these two cases failed to meet this standard, we conclude that Supreme Court improperly assessed each defendant.
Defendant Michael Palmer was convicted of criminal sexual act in the second degree for sexually molesting his underage victim over a period of two years. When he was being interviewed for his pre-sentence report, Palmer told the Probation Department that he "had been drinking alcohol at an after work party on the day he committed the [first] offense" in the summer of 2007. Defense counsel later stated that Palmer hoped to mitigate his behavior by telling the Probation Department that he had been drinking the first time he sexually abused his victim. There was no evidence that Palmer was intoxicated or used drugs or alcohol at any other time. In his pre-sentence interview, Palmer denied abusing alcohol or drugs.
At the SORA hearing, the court assessed Palmer a total of 80 points, including 15 points for drug or alcohol abuse, and Palmer was designated a level two sex offender. The Appellate Division affirmed and determined that the Supreme Court properly assessed Palmer 15 points for drug or alcohol abuse "based upon his admission that he was using alcohol at the time of the offense" (88 A.D.3d 676, 676 [2d Dept 2011]). This Court granted Palmer leave to appeal.
Defendant Cornell Long was convicted of one count of criminal sexual act in the third degree for forcing his live-in girlfriend to have anal and oral sex. Long told the Probation Department at his pre-sentence interview that on the night in question, he had a few beers between 11 PM and 12:30 AM and became depressed while thinking about his deceased brother. Long also stated that he occasionally drank alcohol and usually consumed two or three beers once a month. Long averred that he never received a substance abuse evaluation or enrolled in alcohol treatment. At the SORA hearing, Long was designated a level two sex offender.
The Appellate Division reserved decision and remitted the matter to Supreme Court, since the lower court failed to comply with Correction Law § 168-n by not setting forth findings of fact and conclusions of law (81 A.D.3d 1432, 1432-1433 [4th Dept 2011]). Upon remittal, Supreme Court once again failed to set forth any findings of fact. The court assessed Long a total of 80 points, including 15 points for a history of substance abuse, and designated Long a level two sex offender. The Appellate Division affirmed, recognizing that the court below failed to set forth its findings of fact and conclusions of law in an adequate manner but deciding that the record before it was sufficient to enable the appellate court to make its own findings of fact (89 A.D.3d 1513, 1513 [4th Dept 2011]). The Appellate Division determined that Supreme Court properly adjudicated Long a level two sex offender and ...