Opinion
570601/17
04-19-2022
The People of the State of New York, Respondent, v. Vladimir Duarte, Defendant-Appellant.
Unpublished Opinion
Defendant appeals from an order of the Criminal Court of the City of New York, New York County (Ann D. Thompson, J.), dated November 15, 2019, which adhered to its determination in an order dated September 30, 2019, made after a hearing, designating him a level three sex offender pursuant to the Sex Offender Registration Act ("SORA") (Correction Law Art. 6-C).
PRESENT: Edmead, P.J., Brigantti, Tisch, JJ.
PER CURIAM.
Order (Ann D. Thompson, J.), dated November 15, 2019, affirmed.
The court properly adjudicated defendant a level three sex offender. The court properly assessed defendant 15 points under the risk factor for drug or alcohol abuse, i.e., risk factor 11 (see generally People v Palmer, 20 N.Y.3d 373, 378-379 [2013]). Defendant's failure to complete two drug and alcohol treatment programs while in prison and his accrual of four tier III violations for drug or alcohol abuse while in prison constituted clear and convincing evidence of substance abuse rather than mere use (see People v Woodward, 197 A.D.3d 1075, 1075-1076 [2021], lv denied _ N.Y.3d _, 2022 NY Slip Op 61784 [2022]; People v Gonzalez, 157 A.D.3d 409 [2018], lv denied 31 N.Y.3d 901 [2018]; People v Nelson, 145 A.D.3d 498 [2016], lv denied 29 N.Y.3d 903 [2017]). Although the People did not seek points under risk factor 11, defense counsel requested and was granted an adjournment to enable her to respond to this assessment (see People v Almonte, 171 A.D.3d 660 [2019]).
The court providently exercised its discretion in declining to grant a downward departure from defendant's presumptive risk level to level two (see People v Gillotti, 23 N.Y.3d 841 [2014]). Defendant's age, 44 years at the time of the hearing, does not warrant a downward departure, nor do any of the factors described by defendant, which were already taken into account in the risk assessment instrument and, as such, provide no basis for a downward departure (see People v Diaz, 143 A.D.3d 552, 553 [2016]). Moreover, any mitigating factors were outweighed by the seriousness of the underlying crime, which was committed against a 13 year old victim on her way to school (see People v Baez, 157 A.D.3d 621 [2018], lv denied 31 N.Y.3d 905 [2018]).
All concur.