Opinion
748 KA 22-01851
11-17-2023
The PEOPLE of the State of New York, Respondent, v. David C. VANDERMALLIE, Defendant-Appellant.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CURRAN, BANNISTER, OGDEN, AND DELCONTE, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified on the law by determining that defendant is a level two risk pursuant to the Sex Offender Registration Act and as modified the order is affirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq. ). As the People correctly concede, County Court improperly assessed 10 points under risk factor 15 because the People did not establish by the requisite clear and convincing evidence (see People v. Pettigrew , 14 N.Y.3d 406, 408, 901 N.Y.S.2d 569, 927 N.E.2d 1053 [2010] ) that defendant's living situation was inappropriate (see People v. Hagen , 193 A.D.3d 991, 992, 142 N.Y.S.3d 833 [2d Dept. 2021] ; People v. Morris , 140 A.D.3d 843, 844, 35 N.Y.S.3d 115 [2d Dept. 2016], lv denied 28 N.Y.3d 904, 2016 WL 5000180 [2016] ). The evidence relied on by the People at the hearing established, at most, that defendant's living situation was uncertain, which, standing alone, is insufficient to show that the living situation was inappropriate (see People v. Patel , 192 A.D.3d 1052, 1053, 140 N.Y.S.3d 765 [2d Dept. 2021] ; People v. Rodriguez , 130 A.D.3d 897, 898, 12 N.Y.S.3d 895 [2d Dept. 2015] ; see generally People v. Alemany , 13 N.Y.3d 424, 432, 893 N.Y.S.2d 448, 921 N.E.2d 140 [2009] ). The court determined that defendant's score on the Risk Assessment Instrument should be assessed at 110 points, but that score must therefore be reduced by 10 points, which results in a total score of 100 and renders defendant a presumptive level two risk. We modify the order accordingly. In light of our determination, defendant's remaining contention is academic.