Opinion
570601/17
04-19-2022
The PEOPLE of the State of New York, Respondent, v. Vladimir DUARTE, Defendant-Appellant.
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 NY3d 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 AD3d 1075, 1075-1076 [2021], lv denied ––– NY3d ––––, 2022 NY Slip Op 61784 [2022] ; People v Gonzalez , 157 AD3d 409 [2018], lv denied 31 NY3d 901 [2018] ; People v Nelson , 145 AD3d 498 [2016], lv denied 29 NY3d 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 AD3d 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 NY3d 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 AD3d 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 AD3d 621 [2018], lv denied 31 NY3d 905 [2018] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
All concur