People v. Lineberger

81 A.D.3d 439, 915 N.Y.S.2d 561

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 2011
• Status: Published

Opinion

Order, Supreme Court, New York County (Laura A. Ward, J.), entered on or about September 18, 2009, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The People met their burden of establishing, by clear and convincing evidence, risk factors bearing sufficient total points to support a level three sex offender adjudication. The court properly assessed 15 points for the risk factor of history of drug or alcohol abuse, based on defendant’s extensive history of drug use (see People v Warren, 42 AD3d 593, 594 [2007], Iv denied 9 NY3d 810 [2007]).

Defendant’s challenge to an assessment of 10 points under another risk factor is unavailing. In any event, even without that assessment he would remain a level three offender, and we find no basis for a discretionary downward departure (see People v Mingo, 12 NY3d 563, 568 n 2 [2009]; People v Johnson, 11 NY3d 416, 421 [2008]), particularly in light of the seriousness of the underlying sex crime. The mitigating circumstances cited by defendant were adequately taken into account by the risk assessment instrument. Concur—Saxe, J.B, Friedman, Catterson, Acosta and Richter, JJ.