Opinion
509 KA 22-01172
06-30-2023
The PEOPLE of the State of New York, Respondent, v. Jose PONCE, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (ROBERT WARD OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (ROBERT WARD OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, BANNISTER, MONTOUR, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ). We reject defendant's contention that Supreme Court's assessment of 15 points under risk factor 11 for history of drug or alcohol abuse, which was based on the recommendation in the risk assessment instrument prepared by the Board of Examiners of Sex Offenders, is not supported by clear and convincing evidence (see § 168-n [3]). Although defendant asserted that his prior drug and alcohol use was recreational and did not constitute abuse, his admissions to the Probation Department regarding his daily marihuana use during the time period of the offense established a pattern of drug use in his history evincing substance abuse (see People v. Stewart , 199 A.D.3d 1479, 1480, 154 N.Y.S.3d 896 [4th Dept. 2021], lv denied 38 N.Y.3d 908, 2022 WL 1634317 [2022] ; People v. Richardson , 197 A.D.3d 878, 879, 153 N.Y.S.3d 277 [4th Dept. 2021], lv denied 37 N.Y.3d 918, 2022 WL 403247 [2022] ). Moreover, defendant admitted that he provided marihuana and alcohol to the underage victim during the course of his sexual offense (see People v. Caleb , 170 A.D.3d 1618, 1619, 94 N.Y.S.3d 509 [4th Dept. 2019], lv denied 33 N.Y.3d 910, 2019 WL 2622702 [2019] ).
Contrary to defendant's further contention, the court did not abuse its discretion in denying his request for a downward departure to risk level one or two. Even assuming, arguendo, that defendant "satisfied his burden with respect to the first two steps of the three-step analysis required in evaluating a request for a downward departure," we conclude that the court did not abuse its discretion in denying defendant's request ( People v. Cornwell , 213 A.D.3d 1239, 1240, 181 N.Y.S.3d 497 [4th Dept. 2023], lv denied 39 N.Y.3d 916 [2023] ; see People v. Pritchard , 213 A.D.3d 1215, 1216, 182 N.Y.S.3d 467 [4th Dept. 2023], lv denied 39 N.Y.3d 914, 2023 WL 3589014 [2023] ; see generally People v. Gillotti , 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). Upon weighing the mitigating circumstances—including the fact that defendant pleaded guilty to statutory rape—against the aggravating circumstances, we conclude that the totality of the circumstances does not warrant a downward departure inasmuch as defendant's presumptive risk level "does not represent an over-assessment of his dangerousness and risk of sexual recidivism" ( People v. Burgess , 191 A.D.3d 1256, 1257, 137 N.Y.S.3d 781 [4th Dept. 2021] ; see People v. Simmons , 195 A.D.3d 1566, 1569, 148 N.Y.S.3d 805 [4th Dept. 2021], lv denied 37 N.Y.3d 915, 2021 WL 5473136 [2021] ; see generally People v. Sincerbeaux , 27 N.Y.3d 683, 690-691, 37 N.Y.S.3d 39, 57 N.E.3d 1076 [2016] ).