Opinion
12007 Ind. No. 2331/16 Case No. 2018-4904
10-08-2020
The PEOPLE of the State of New York, Respondent, v. Luis ALEMAN, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Nicole Neckles of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Nicole Neckles of counsel), for respondent.
Renwick, J.P., Gonza´lez, Kennedy, Mendez, JJ.
Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about October 19, 2018, which adjudicated defendant a level three predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.
Defendant should not have been scored 15 points for the risk factor of a history of drug or alcohol abuse. Absent any reliable evidence of defendant's use of drugs or alcohol at the time of the offense, and in light of insufficient evidence that he abused drugs or alcohol repeatedly in the past, the People failed to prove that factor by clear and convincing evidence (see People v. Weber , 158 A.D.3d 498, 499, 69 N.Y.S.3d 54 [1st Dept. 2018], lv denied 31 N.Y.3d 1089, 79 N.Y.S.3d 111, 103 N.E.3d 1258 [2018] ).
However, defendant automatically qualifies as a level three offender, independently of any point assessments, based on his prior New Jersey felony sex crime conviction (see People v. Howard , 27 N.Y.3d 337, 342, 33 N.Y.S.3d 132, 52 N.E.3d 1158 [2016] ). We find that the court providently exercised its discretion in denying defendant's request for a downward departure (see People v. Gillotti , 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). The various mitigating factors argued by defendant are outweighed by the danger of future recidivism (see People v. Guaman , 8 A.D.3d 545, 778 N.Y.S.2d 704 [2d Dept. 2004] ).