Opinion
67 Ind. No. 2186/14 Case No. 2019–2438
04-18-2023
The PEOPLE of the State of New York, Respondent, v. Pedro ORTIZ, Defendant–Appellant.
Twyla Carter, The Legal Aid Society, New York (Whitney Elliott of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Noah J. Sexton of counsel), for respondent.
Twyla Carter, The Legal Aid Society, New York (Whitney Elliott of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Noah J. Sexton of counsel), for respondent.
Kapnick, J.P., Moulton, Kennedy, Mendez, Pitt–Burke, JJ.
Order, Supreme Court, Bronx County (Margaret L. Clancy, J.), entered on or about September 28, 2018, as amended June 1, 2022, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.
The court properly assessed 15 points for a history of drug or alcohol abuse. Defendant's statements to corrections officials that he had a history of alcohol abuse and was "probably drunk" at the time of the offense, along with his referral to an alcohol and substance abuse program, constituted clear and convincing evidence supporting this assessment (see People v. Palmer, 20 N.Y.3d 373, 378–379, 960 N.Y.S.2d 719, 984 N.E.2d 917 [2013] ; People v. Sandoval, 176 A.D.3d 448, 448, 107 N.Y.S.3d 849 [1st Dept. 2019], lv denied 35 N.Y.3d 901, 2020 WL 1527298 [2020] ; People v. Van Phu Bui, 156 A.D.3d 448, 64 N.Y.S.3d 534 [1st Dept. 2017], lv denied 31 N.Y.3d 903, 2018 WL 1527924 [2018] ). Defendant's admission of being intoxicated at the particular time of the crime was sufficiently specific and believable.
The court providently exercised its discretion in declining to grant a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). There were no mitigating factors that were not adequately taken into account by the guidelines or outweighed by the seriousness of the underlying crime, which was defendant's second conviction for sexually abusing a child in his family.