Opinion
No. 2591 Ind. No. 2754/18 Case No. 2020-01095
09-24-2024
The People of the State of New York, Respondent, v. David Feldmeth, Defendant-Appellant.
Twyla Carter, The Legal Aid Society, New York (Robin Richardson of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Michael D. Tarbutton of counsel), for respondent.
Twyla Carter, The Legal Aid Society, New York (Robin Richardson of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Michael D. Tarbutton of counsel), for respondent.
Before: Singh, J.P., Gesmer, Scarpulla, Rodriguez, Michael, JJ.
Order, Supreme Court, New York County (Steven M. Statsinger, J.), entered on or about December 10, 2019, which adjudicated defendant a level two predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
The court properly assessed points under the risk factor for a history of substance abuse, given defendant's admission to daily use of marijuana and his prior drug-related convictions (see People v Diaz, 220 A.D.3d 467, 467 [1st Dept 2023], lv denied 41 N.Y.3d 904 [2024]; People v Parks, 216 A.D.3d 462, 462 [1st Dept 2023]). Defendant's contention that his marijuana use was for medical purposes is unsupported by the record.
The court providently exercised its discretion in declining to grant a downward departure (see People v Gillotti, 23 N.Y.3d 841, 861 [2014]). Defendant has not established that his physical condition would minimize his risk of reoffending, particularly given that his condition did not prevent him from committing the underlying and a prior similar crime (see People v Sudderth, 171 A.D.3d 593 [1st Dept 2019], lv denied 33 N.Y.3d 913 [2019]; People v Rodriguez, 101 A.D.3d 630 [1st Dept 2012], lv denied 21 N.Y.3d 851 [2013]). Defendant was already confined to a wheelchair when he committed the offenses, and had in fact exploited his disability in both instances, when he approached the victims under the guise of needing assistance and then committing the sexual misconduct as they aided him. The impact that a risk level two adjudication has on defendant's eligibility to remain at the nursing home where he resides and receives medical care does not qualify as a mitigating circumstance, as it has no bearing on his risk of reoffense or the threat he poses to public safety (see People v Bevel, 224 A.D.3d 430, 431 [1st Dept 2024]; People v McFarland, 120 A.D.3d 1121, 1122 [1st Dept 2014], lv denied 24 N.Y.3d 1053 [2014]). Further, defendant committed the underlying crime after having been adjudicated risk level one sex offender in connection with the prior offense (see People v Delgado, 130 A.D.3d 484, 485 [1st Dept 2015], lv denied 26 N.Y.3d 909 [2015]).