People v. Perez

138 A.D.3d 1081, 28 N.Y.S.3d 905

Opinion

Appeal by the defendant from an order of the Supreme Court, Kings County (Riviezzo, J.), dated August 29, 2013, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

At a hearing pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), the defendant was assessed 145 points, 35 points in excess of what is required to designate him presumptively a level three sex offender.

The defendant challenges the assessment of 15 points against him for a history of drug and/or alcohol abuse, and 15 points for failure to accept responsibility. The exclusion of those points would not alter his presumptive risk level (see People v Boykin, 102 AD3d 937 [2013]).

In any event, the assessment of points for a history of drug and/or alcohol abuse was based upon the defendant’s admissions (see People v Murphy, 68 AD3d 832, 833 [2009]) and the fact that he was treated for alcohol abuse while in prison (see People v Snyder, 133 AD3d 1052, 1053 [2015]). Further, the defendant’s refusal to engage in sex offender treatment warranted the assessment of 15 points against him for failure to accept responsibility (see People v Pinckney, 129 AD3d 1048, 1049 [2015]).

A downward departure from a defendant’s presumptive risk level may be warranted where there exists a mitigating factor of a kind, or to a degree, that is not otherwise taken into account when assessing points (see People v Guzman, 110 AD3d 863 [2013]). The defendant’s lack of a disciplinary history while in prison was taken into account when assessing points, and therefore is not a ground for a downward departure from his presumptive risk level (see People v Torres, 124 AD3d 744, 745 [2015]). Further, the defendant’s age was not a ground for a downward departure (see People v Shelton, 126 AD3d 959, 960 [2015]).

The defendant’s remaining contentions are without merit. Accordingly, the defendant was properly designated a level three sex offender.

Rivera, J.P., Balkin, Dickerson and Hinds-Radix, JJ., concur.