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THE EVIDENCE THAT DEFENDANT HAD USED ALCOHOL TO EXCESS AT THE TIME OF THE CRIME WAS CONFLICTING AND INSUFFICIENT; IN ADDITION, THE DEFENDANT WAS NOT IN CUSTODY OR UNDER SUPERVISION AT THE TIME OF ALLEGED MISCONDUCT; THEREFORE 25 POINTS WERE TAKEN OFF DEFENDANT’S RISK-LEVEL ASSESSMENT (FOURTH DEPT).

The Fourth Department determined the evidence did not support the finding that defendant was intoxicated at the time of the offense. In addition the SORA court wrongly found that defendant was in custody or under supervision at the time of alleged misconduct. Therefore a total of 25 points were wrongly applied to the risk-level assessment:

… [I]n order to demonstrate that [defendant] was abusing . . . alcohol at the time of the offense, the People [were required to] show by clear and convincing evidence that [defendant] used alcohol in excess . . . at the time of the crime” … . Here, the victim informed a caseworker that, on the night of that incident, defendant had been “outside by the fire drinking.” Defendant’s ex-wife also indicated in her victim impact statement that defendant was “drunk” on the night of that incident, but it is unclear whether the source of her information was the victim or hearsay from an unidentified third-party with whom the victim had spoken and whose reliability could not be tested … . In contrast, the victim denied that defendant had been drinking at the time of the second incident and indicated that defendant “normally doesn’t drink.” In his interview with probation, defendant denied “current alcohol or substance use and . . . any current or past treatment for such.” We conclude that there is no indication in the record that defendant abused alcohol by drinking in excess, that defendant became intoxicated, or that alcohol affected his behavior during the incident … . Nor is it “clear from the record what time the drinking occurred, how much [defendant] had to drink, and how much time passed before he abused [the] victim” … . The People thus failed to establish that defendant abused alcohol at the time of the offensive conduct, and the court erred in assessing 15 points under risk factor 11. People v Crane, 2025 NY Slip Op 01530,Fourth Dept 3-14-25

Practice Point: Here the evidence that defendant had used alcohol to excess at the time of the crime was weak and conflicting, rendering it insufficient to support the 15 points assessed on that ground.

 

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