INSUFFICIENT EVIDENCE THAT DEFENDANT HAD A HISTORY OF DRUG AND ALCOHOL ABUSE, RISK ASSESSMENT REDUCED (FOURTH DEPT).

The Fourth Department, in this Sex Offender Registration Act (SORA) risk assessment proceeding, determined there was insufficient evidence that defendant had a history of alcohol and drug abuse:

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 … .

The SORA Risk Assessment Guidelines and Commentary for risk factor 11 state in relevant part that “[a]lcohol and drug abuse are highly associated with sex offending . . . The guidelines reflect this fact by adding 15 points if an offender has a substance abuse history . . . It is not meant to include occasional social drinking. In instances where the offender abused drugs and/or alcohol in the distant past, but his more recent history is one of prolonged abstinence, the . . . court may choose to score zero points in this category” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006]). At the SORA hearing, the People presented evidence that defendant drank one can of beer each month. We agree with defendant that such evidence was insufficient to warrant the assessment of points under risk factor 11 … . The People also presented evidence that defendant smoked marihuana in his teenage years and early twenties, but thereafter participated in a drug treatment program and, at the time of the presentence interview, had not smoked marihuana for four years. We agree with defendant that the People’s evidence established that his recent history of drug use was one of prolonged abstinence and was also insufficient to warrant the assessment of points under risk factor 11 … . People v Madonna, 2018 NY Slip Op 08789, Fourth Dept 12-21-18