People v. Ruddy

[518] Appeal by the defendant from an order of the County Court, Westchester County (Alessandro, J.), entered June 24, 2004, which, after a hearing pursuant to Correction Law article 6-C, designated him a level two sex offender. Ordered that the order is reversed, on the law, without costs or disbursements, and the defendant is classified as a level one sex offender. The defendant contends that the County Court improperly assessed him 10 points for his living situation merely because it found his living situation to be uncertain. We agree. Under risk factor 15 of the risk assessment instrument (see Correction Law article 6-C, Sex Offender Registration Act) a court, inter alia, examines a defendant’s living situation and can assess the defendant 10 points if it finds his or her living situation to be inappropriate. The Risk Assessment Guidelines and Commentary define, as an example of an inappropriate living situation, a child molester living “near an elementary school playground” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 17 [1997 ed]). The evidence presented at the hearing showed that, at the most, the defendant’s living situation was uncertain in that he may have been homeless, or was living in a “sober house” in Long Island. This was insufficient as a matter of law to meet the burden of showing, by clear and convincing evidence, that the defendant’s living situation was inappropriate (see Correction Law § 168-n [3]; People v Hampton, 300 AD2d 641 [2002]). Accordingly, the County Court erred in assessing the defendant 10 points under risk factor 15. Subtracting those 10 points from the total of the 80 points assessed by the County Court against the defendant leaves the defendant with a total of 70 points, rendering him a level one sex offender. Florio, J.P., Crane and Mastro, JJ., concur.