Opinion
08-23-2017
PEOPLE of State of New York, respondent, v. Rodolfo HERNANDEZ, appellant.
Lynn W.L. Fahey, New York, NY (Anna Pervukhin of counsel), for appellant. Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Anna Pervukhin of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
Appeal by the defendant, as limited by his brief, from so much of an order of the Supreme Court, Richmond County (Rooney, J.), dated February 18, 2014, as, upon, in effect, reargument, adhered to its prior determination in an order dated February 11, 2014, made after a hearing, designating him a level two sex offender pursuant to Correction Law article 6–C.
ORDERED that the order dated February 18, 2014, is affirmed insofar as appealed from, without costs or disbursements.Contrary to the defendant's contention, the People established, by clear and convincing evidence, that the assessment of 15 points under risk factor 11, for a history of alcohol abuse, was appropriate (see People v. Henriquez, 146 A.D.3d 911, 44 N.Y.S.3d 768 ; People v. Zavala, 114 A.D.3d 653, 654, 979 N.Y.S.2d 660 ).
Contrary to the defendant's further contention, the Supreme Court properly denied his application for a downward departure (see People v. Fessel, 149 A.D.3d 1113, 50 N.Y.S.3d 885 ; People v. Calle–Calle, 145 A.D.3d 804, 41 N.Y.S.3d 911 ; People v.
Vizcarra, 138 A.D.3d 815, 816, 28 N.Y.S.3d 336 ).
ENG, P.J., LEVENTHAL, SGROI and MALTESE, JJ., concur.