People v. Zewge

142 A.D.3d 880, 38 N.Y.S.3d 536

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 27, 2016
• Docket: 1735 2650/10
• Status: Published

Opinion

Order, Supreme Court, New York County (Bruce Allen, J.), rendered September 5, 2014, 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 considered defendant’s prior youthful offender adjudication in assessing points under the risk factor for prior crimes (see People v Wilkins, 77 AD3d 588 [1st Dept 2010], lv denied 16 NY3d 703 [2011]). The court also properly assessed points under the risk factor for alcohol abuse, because defendant’s admissions to correction officials (see e.g. People v Kelly, 69 AD3d 498 [1st Dept 2010]) provided clear and convincing evidence of such abuse, satisfying the standard set forth in People v Palmer (20 NY3d 373, 378-379 [2013]).

The court properly exercised its discretion when it declined to grant a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). There were no mitigating factors that were not adequately taken into account by the risk assessment instrument, and the record does not establish any basis for a downward departure.

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