People v Baez

People v Baez 2021 NY Slip Op 06771 Decided on December 02, 2021 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: December 02, 2021
Before: Gische, J.P., Kapnick, Kern, Gesmer, Kennedy, JJ.
Ind No. 1485/19 Appeal No. 14742 Case No. 2020-01687

[*1]The People of the State of New York, Respondent,

v

Carlos Baez, Defendant-Appellant.

The Bronx Defenders, Bronx (Daniel Hamburg of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Daniel J. Young of counsel), for respondent.

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about February 14, 2020, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously modified, on the law and the facts, to the extent of reducing the adjudication to level one, and otherwise affirmed, without costs.

The People failed to establish by clear and convincing evidence that defendant should have been scored 15 points for drug or alcohol abuse (see People v Palmer, 20 NY3d 373, 378-379 [2013]; People v Weber, 158 AD3d 498 [1st Dept 2018], lv denied 31 NY3d 1089 [2018]). Defendant admitted to occasional marijuana use, and there is no evidence that he had smoked marijuana at the time of the offense. The only evidence of prior drug treatment was as a condition of parole, on a nondrug-related conviction, that was completed in 2005. There is no evidence that defendant's use of marijuana was established as anything more than occasional social use, and accordingly it does not warrant assessment of points under the risk factor for drug abuse.

Because subtraction of these points reduces defendant's risk classification to level one, we need not reach his remaining contentions. THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: December 2, 2021