People v. Van Phu Bui

2017 NY Slip Op 8614, 156 A.D.3d 448, 64 N.Y.S.3d 534

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 7, 2017
• Docket: 5166 1143/95
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Albert Lorenzo, J.), entered on or about December 3, 2014, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly assessed points for a history of drug or alcohol abuse, based upon defendant’s admission to probation officials (see e.g. People v Kelly, 69 AD3d 498 [1st Dept 2010]) that he periodically abused alcohol and was smoking marijuana at the time of the underlying offense. There was clear and convincing evidence of such abuse, satisfying the standard set forth in People v Palmer (20 NY3d 373, 378-379 [2013]).

The court providently exercised its discretion when it declined to grant a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument, or were outweighed by the egregiousness of the underlying crime.

Concur—Manzanet-Daniels, J.P., Mazzarelli, Kapnick and Webber, JJ.