Opinion
01-15-2024
The PEOPLE of the State of New York, Respondent, v. William SMITH, Defendant–Appellant.
Twyla Carter, The Legal Aid Society, New York (Clara Hammond–Oakley of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Saad Siddiqui of counsel), for respondent.
Twyla Carter, The Legal Aid Society, New York (Clara Hammond–Oakley of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Saad Siddiqui of counsel), for respondent.
Manzanet–Daniels, J.P., Oing, Kapnick, Shulman, Pitt–Burke, JJ.
Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about February 7, 2020, 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 under the risk factor for history of drug or alcohol abuse. Defendant’s multiple prior drug convictions, the results of two screening tests for alcohol and substance abuse at New York State Department of Corrections and Community Services (DOCCS) reception and subsequent referral to an alcohol and substance abuse treatment program, and defendant’s infraction for drug possession while incarcerated provided clear and convincing evidence of a history of substance abuse (see People v. Sims, 215 A.D.3d 496, 497, 186 N.Y.S.3d 209 [1st Dept. 2023], lv denied 40 N.Y.3d 904, 2023 WL 6153201 [2023]; People v. Greene, 154 A.D.3d 583, 61 N.Y.S.3d 902 [1st Dept. 2017], lv denied 30 N.Y.3d 913, 2018 WL 943505 [2018]). In any event, even without the 15 points, defendant would still remain a presumptive risk level three offender, with a total point score of 110.
The court providently exercised its discretion in denying a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]). Defendant’s participation in educational and vocational programs have been adequately taken into account by the risk assessment instrument (see People v. Sadagheh, 214 A.D.3d 566, 183 N.Y.S.3d 853 [1st Dept. 2023], lv denied 40 N.Y.3d 902, 2023 WL 6066638 [2023]), and he has not established that his response to sex offender treatment was so exceptional as to warrant a departure (see People v. Alcantara, 154 A.D.3d 532, 61 N.Y.S.3d 883 [1st Dept. 2017], lv denied 30 N.Y.3d 908, 2018 WL 326534 [2018]). Furthermore, the mitigating circumstances were outweighed by the seriousness of the underlying crimes, which involved the sexual abuse of two children over a period of two years, starting when they were 9 and 13 years old.