Opinion
5166 Ind. 1143/95
12-07-2017
The PEOPLE of the State of New York, Respondent, v. VAN PHU BUI, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Desiree Sheridan of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (James J. Wen of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Desiree Sheridan of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (James J. Wen of counsel), for respondent.
Manzanet–Daniels, J.P., Mazzarelli, Kapnick, Webber, JJ.
Order, Supreme Court, Bronx County (Albert Lorenzo, J.), entered on or about December 3, 2014, 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 points for a history of drug or alcohol abuse, based upon defendant's admission to probation officials (see e.g. People v. Kelly, 69 A.D.3d 498, 893 N.Y.S.2d 51 [1st Dept 2010] ) that he periodically abused alcohol and was smoking marijuana at the time of the underlying offense. There was clear and convincing evidence of such abuse, satisfying the standard set forth in People v. Palmer(20 N.Y.3d 373, 378–379, 960 N.Y.S.2d 719, 984 N.E.2d 917 [2013] ).
The court providently exercised its discretion when it declined to grant a downward departure (see People v. Gillotti, 23 NY3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument, or were outweighed by the egregiousness of the underlying crime.