People v. Leiva
This text of 2023 NY Slip Op 01946 (People v. Leiva) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
| People v Leiva |
| 2023 NY Slip Op 01946 |
| Decided on April 13, 2023 |
| 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: April 13, 2023
Before: Renwick, A.P.J., Moulton, Shulman, Rodriguez, Pitt-Burke, JJ.
Ind. No. 6337/08 Appeal No. 28 Case No. 2018-3567
v
Louis Leiva, Defendant-Appellant.
David Loftis, The Legal Aid Society, New York (Lorraine Maddalo of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Anna Notchick of counsel), for respondent.
Order, Supreme Court, New York County (Anthony J. Ferrara, J.), entered on or about June 9, 2017, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
The court properly assessed points under the risk factor for alcohol and substance abuse. The victim reported that defendant raped her after he had been drinking (see e.g. People v Zewge, 142 AD3d 880 [1st Dept 2016]). Defendant admitted drug and alcohol abuse to correction officials and participated in a substance abuse program while incarcerated.
In any event, even were we to find that defendant's correct risk assessment instrument score is 80 points, as defendant contends, he would remain a level two offender and we find no basis for a downward departure (see generally People v Gillotti, 23 NY3d 841 [2014]). The mitigating factors cited by defendant, including his age and completion of treatment programs, were adequately taken into account by the risk assessment instrument, and were outweighed by the seriousness of defendant's multiple rapes of a child who was left in his care.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: April 13, 2023
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