Calendar Date: April 24, 2013
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.
P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), for respondent.
Before: Peters, P.J., Rose, Lahtinen and Garry, JJ.
MEMORANDUM AND ORDER
Appeal from an order of the Supreme Court (Lamont, J.), entered December 5, 2011 in Albany County, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.
At a hearing to determine defendant's risk level pursuant to the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]), Supreme Court determined that 30 points under risk factor 3 (number of victims), 30 points under risk factor 5 (age of victim), and 15 points under risk factor 11 (drug or alcohol abuse) should be assessed. The total of 75 points under the SORA risk assessment instrument placed defendant in the low end of the risk level II category. Thereafter, Supreme Court concluded that the above risk factors did not properly assess the degree of danger that child pornography offenders pose to society, and found clear and convincing evidence in the assessment of the clinical psychologist and the federal presentence report to support an upward departure to a risk level III sex offender classification. Defendant appeals.
Defendant failed to preserve his claim that his due process rights were violated as a result of Supreme Court's assessment of 30 points under risk factor 3 inasmuch as no objection on that ground was raised before the court (see People v Campbell, 98 A.D.3d 5, 9 , lv denied 20 N.Y.3d 853 ). In any event, the numerous children depicted in the images were "properly considered victims for the purposes of SORA" (People v Johnson, 47 A.D.3d 140, 144 , affd 11 N.Y.3d 416 ). However, we do find merit in defendant's challenge to Supreme Court's assessment of 15 points under risk factor 11. Neither the federal presentence investigation report nor defendant's psychological evaluation indicated any pattern of drug or alcohol use in defendant's history (see People v Arotin, 19 A.D.3d 845, 848 ). Thus, we cannot conclude that this evidence "establish[es] a history of drug or alcohol abuse by clear and convincing evidence" (People v Titmas, 46 A.D.3d 1308, 1309 ; see People v Irizarry, 36 A.D.3d 473, 473 ; People v Arotin, 19 A.D.3d at 848).
Consequently, defendant's total risk factor score must be reduced by 15 points, which results in a presumptive classification as a risk level I sex offender. Nevertheless, given the proof in the record and the People's submissions, we deem it appropriate under the circumstances herein to remit the matter to Supreme Court "for consideration of any factors warranting an upward modification" (People v Stewart, 61 A.D.3d 1059, 1061 ; People v Felice, 100 A.D.3d 609, 610 ; see also People v Fazio, ___ A.D.3d ___, 2013 NY Slip Op 03517 ).
Peters, P.J., Rose and Garry, JJ., concur.
ORDERED that the order is reversed, on the law, without costs, and matter remitted to the Supreme Court for further proceedings not ...