People v Zapata, 2011 NY Slip Op 03337 [83 AD3d 606]

April 28, 2011

Appellate Division, First Department

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Steven Banks, The Legal Aid Society, New York (Lorca Morello of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Mary C. Farrington of counsel), for respondent.

Order, Supreme Court, New York County (Daniel P. FitzGerald, J.), entered on or about April 27, 2009, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously modified, on the law, to the extent of reducing the adjudication to that of a level one sex offender, and otherwise affirmed, without costs.

The court incorrectly assessed 15 points under the risk factor of history of substance abuse, since the People’s proof in relation to this factor did not meet the clear and convincing evidence standard ( see People v Irizarry , 36 AD3d 473 [2007]). Without the improperly assessed points, defendant qualifies as a level one offender. Concur—Gonzalez, P.J., Sweeny, Moskowitz, Renwick and Richter, JJ..