People v. Garcia

25 Citing cases

  1. People v. Vasquez

    No. 2020-00274 (N.Y. App. Div. Sep. 15, 2021)

    Contrary to the defendant's contention, the County Court did not err in assessing him 15 points under risk factor 11, for history of drug and alcohol abuse (see People v Garcia, 192 A.D.3d 833, 834). "At a SORA hearing, the People must prove the facts to support a SORA risk-level classification by clear and convincing evidence" (People v Howard, 27 N.Y.3d 337, 341; see Correction Law § 168-n[3]; People v Mingo, 12 N.Y.3d 563, 571).

  2. People v. Vasquez

    197 A.D.3d 1185 (N.Y. App. Div. 2021)   Cited 22 times

    At a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the County Court assessed the defendant 115 points, presumptively placing him within the level three designation. Contrary to the defendant's contention, the County Court did not err in assessing him 15 points under risk factor 11, for history of drug and alcohol abuse (seePeople v. Garcia, 192 A.D.3d 833, 834, 139 N.Y.S.3d 858 ). "At a SORA hearing, the People must prove the facts to support a SORA risk-level classification by clear and convincing evidence" ( People v. Howard, 27 N.Y.3d 337, 341, 33 N.Y.S.3d 132, 52 N.E.3d 1158 ; see Correction Law § 168–n[3] ; People v. Mingo, 12 N.Y.3d 563, 571, 883 N.Y.S.2d 154, 910 N.E.2d 983 ). The assessment of points under risk factor 11 may be appropriate if the offender has a "history" of substance abuse or if the offender "was abusing drugs and or alcohol at the time of the offense" (Sex Offender Registration Act Guidelines & Commentary at 15 [2006] [hereinafter Guidelines]; seePeople v. Palmer, 20 N.Y.3d 373, 378–380, 960 N.Y.S.2d 719, 984 N.E.2d 917 ; People v. Santogual, 157 A.D.3d 737, 737, 66 N.Y.S.3d 616 ; People v. Madison, 153 A.D.3d 737, 738, 59 N.Y.S.3d 755 ).

  3. People v. Vasquez

    No. 2021-04983 (N.Y. App. Div. Sep. 15, 2021)

    Contrary to the defendant's contention, the County Court did not err in assessing him 15 points under risk factor 11, for history of drug and alcohol abuse (see People v Garcia, 192 A.D.3d 833, 834). "At a SORA hearing, the People must prove the facts to support a SORA risk-level classification by clear and convincing evidence" (People v Howard, 27 N.Y.3d 337, 341; see Correction Law § 168-n[3]; People v Mingo, 12 N.Y.3d 563, 571).

  4. People v. Vasquez

    2021 N.Y. Slip Op. 4983 (N.Y. Sup. Ct. 2021)

    At a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA), the County Court assessed the defendant 115 points, presumptively placing him within the level three designation. Contrary to the defendant's contention, the County Court did not err in assessing him 15 points under risk factor 11, for history of drug and alcohol abuse (see People v Garcia, 192 A.D.3d 833, 834). "At a SORA hearing, the People must prove the facts to support a SORA risk-level classification by clear and convincing evidence" (People v Howard, 27 N.Y.3d 337, 341; see Correction Law § 168-n[3]; People v Mingo, 12 N.Y.3d 563, 571). The assessment of points under risk factor 11 may be appropriate if the offender has a "history" of substance abuse or if the offender "was abusing drugs and or alcohol at the time of the offense" (Sex Offender Registration Act Guidelines & Commentary at 15 [2006] [hereinafter Guidelines]; see People v Palmer, 20 N.Y.3d 373, 378-380; People v Santogual, 157 A.D.3d 737, 737; People v Madison, 153 A.D.3d 737, 738).

  5. People v. Vasquez

    2021 N.Y. Slip Op. 4983 (N.Y. Sup. Ct. 2021)

    At a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA), the County Court assessed the defendant 115 points, presumptively placing him within the level three designation. Contrary to the defendant's contention, the County Court did not err in assessing him 15 points under risk factor 11, for history of drug and alcohol abuse (see People v Garcia, 192 A.D.3d 833, 834). "At a SORA hearing, the People must prove the facts to support a SORA risk-level classification by clear and convincing evidence" (People v Howard, 27 N.Y.3d 337, 341; see Correction Law § 168-n[3]; People v Mingo, 12 N.Y.3d 563, 571). The assessment of points under risk factor 11 may be appropriate if the offender has a "history" of substance abuse or if the offender "was abusing drugs and or alcohol at the time of the offense" (Sex Offender Registration Act Guidelines & Commentary at 15 [2006] [hereinafter Guidelines]; see People v Palmer, 20 N.Y.3d 373, 378-380; People v Santogual, 157 A.D.3d 737, 737; People v Madison, 153 A.D.3d 737, 738).

  6. People v. Weber

    2023 N.Y. Slip Op. 3301 (N.Y. 2023)   Cited 1 times

    In practice, prosecutors frequently seek upward departures in the alternative (see e.g., People v Cook, 39 N.Y.3d 121, 124 [2017]; People v Manley, 209 A.D.3d 445 [1st Dept 2022], lv denied 39 N.Y.3d 909 [2023]; People v Bonds, 207 A.D.3d 666 [2d Dept 2022], lv denied 39 N.Y.3d 903 [2023]; People v Edmee, 205 A.D.3d 938 [2d Dept 2022], lv denied 39 N.Y.3d 901 [2023]; People v Myles, 202 A.D.3d 549 [1st Dept 2022], lv denied 38 N.Y.3d 910 [2022]; People v Correa, 202 A.D.3d 413 [1st Dept 2022], lv denied 38 N.Y.3d 909 [2022]; People v Satornino, 200 A.D.3d 813 [2d Dept 2021], lv denied 38 N.Y.3d 908 [2022]; People v June, 195 A.D.3d 1443 [4th Dept 2021], lv denied 37 N.Y.3d 912 [2021]; People v Green, 192 A.D.3d 927 [2d Dept 2021], lv denied 37 N.Y.3d 910 [2021]; People v Garcia, 192 A.D.3d 833 [2d Dept 2021], lv denied 37 N.Y.3d 910 [2021]; People v West, 189 A.D.3d 1481 [2d Dept 2020], lv denied 36 N.Y.3d 913 [2021]; People v Pierre, 189 A.D.3d 1092 [2d Dept 2020], lv denied 36 N.Y.3d 912 [2021]; People v Malena, 186 A.D.3d 1175 [1st Dept 2020], lv denied 36 N.Y.3d 907 [2021]; People v Larkin, 66 A.D.3d 592 [1st Dept 2009], lv denied 14 N.Y.3d 704 [2010]; People v Ross, 37 A.D.3d 1117 [4th Dept 2007], lv denied 9 N.Y.3d 802 [2007]). The majority explains that most of these cited cases are "not directly apposite" because they present instances in which the People "plainly had reason" to request a departure in the alternative because their assessment differed from the Board's RAI (majority op at 9 n 4).

  7. People v. Weber

    40 N.Y.3d 206 (N.Y. 2023)

    121, 124, 53 N.Y.S.3d 238, 75 N.E.3d 655 [2017] ; People v. Manley, 209 A.D.3d 445, 174 N.Y.S.3d 830 [1st Dept. 2022], lv denied 39 N.Y.3d 909, 2023 WL 2530941 [2023] ; People v. Bonds, 207 A.D.3d 666, 170 N.Y.S.3d 499 [2d Dept. 2022], lv denied 39 N.Y.3d 903, 2022 WL 16984420 [2022] ; People v. Edmee, 205 A.D.3d 938, 166 N.Y.S.3d 587 [2d Dept. 2022], lv denied 39 N.Y.3d 901, 2022 WL 11452547 [2022] ; People v. Myles, 202 A.D.3d 549, 159 N.Y.S.3d 667 [1st Dept. 2022], lv denied 38 N.Y.3d 910, 2022 WL 2165463 [2022] ; People v. Correa, 202 A.D.3d 413, 158 N.Y.S.3d 568 [1st Dept. 2022], lv denied 38 N.Y.3d 909, 2022 WL 2126466 [2022] ; People v. Satornino, 200 A.D.3d 813, 155 N.Y.S.3d 130 [2d Dept. 2021], lv. denied 38 N.Y.3d 908, 2022 WL 1634260 [2022] ; People v. June, 195 A.D.3d 1443, 145 N.Y.S.3d 469 [4th Dept. 2021], lv denied 37 N.Y.3d 912, 2021 WL 4782541 [2021] ; People v. Green, 192 A.D.3d 927, 140 N.Y.S.3d 722 [2d Dept. 2021], lv denied 37 N.Y.3d 910, 2021 WL 4188901 [2021] ; People v. Garcia, 192 A.D.3d 833, 139 N.Y.S.3d 858 [2d Dept. 2021], lv denied 37 N.Y.3d 910, 2021 WL 4188818 [2021] ; People v. West, 189 A.D.3d 1481, 134 N.Y.S.3d 764[ 2d Dept. 2020], lv denied 36 N.Y.3d 913, 2021 WL 1807107 [2021] ; People v. Pierre, 189 A.D.3d 1092, 133 N.Y.S.3d 835 [2d Dept. 2020], lv denied 36 N.Y.3d 912, 2021 WL 1742941 [2021] ; People v. Malena, 186 A.D.3d 1175, 129 N.Y.S.3d 326 [1st Dept. 2020], lv denied 36 N.Y.3d 907, 2021 WL 628480 [2021] ; People v. Larkin, 66 A.D.3d 592, 886 N.Y.S.2d 804 [1st Dept. 2009], lv denied 14 N.Y.3d 704, 2010 WL 606966 [2010] ; People v. Ross, 37 A.D.3d 1117, 829 N.Y.S.2d 365 [4th Dept. 2007], lv denied 9 N.Y.3d 802, 840 N.Y.S.2d 567, 872 N.E.2d 253 [2007] ).

  8. People v. Rizzo

    2025 N.Y. Slip Op. 50048 (N.Y. App. Term 2025)

    The court properly assessed points under risk factors nine (number and nature of prior crimes) and ten (recency of prior sex crime). Defendant committed the underlying forcible touching offense only months after his prior forcible touching conviction; and his criminal history includes felony convictions for both first and second degree burglary, as well as convictions for driving while impaired by alcohol, third-degree assault and third-degree criminal mischief as a hate crime (see People v Garcia, 192 A.D.3d 833 [2021], lv denied 37 N.Y.3d 910 [2021]). Defendant was also properly assessed 15 points under risk factor 14 for lack of supervised release (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]), "even [if] this was a matter beyond defendant's control" (see People v Tejada, 51 A.D.3d 472 [2008]).

  9. People v. Magnetic

    2024 N.Y. Slip Op. 4986 (N.Y. App. Div. 2024)

    Further, the remoteness of the defendant's first sex offense was adequately taken into account by risk factor 10 (recency of prior felony or sex crime) (see People v Emery, 204 A.D.3d 944, 945). In addition, the defendant's willingness to participate in sex offender treatment was taken into account by risk factor 12 (acceptance of responsibility) (see People v Garcia, 192 A.D.3d 833, 834). Although a defendant's response to treatment may qualify as a ground for a downward departure where the response is "exceptional," the defendant made no showing that his response to sex offender treatment was exceptional (see People v Rogers, 222 A.D.3d 894, 896).

  10. People v. Magnetic

    231 A.D.3d 875 (N.Y. App. Div. 2024)

    Further, the remoteness of the defendant’s first sex offense was adequately taken into account by risk factor 10 (recency of priorfelony or sex crime) (see People v. Emery, 204 A.D.3d 944, 945, 164 N.Y.S.3d 888). In addition, the defendant’s willingness to participate in sex offender treatment was taken into account by risk factor 12 (acceptance of responsibility) (see People v. Garcia, 192 A.D.3d 833, 834, 139 N.Y.S.3d 858). Although a defendant’s response to treatment may qualify as a ground for a downward departure where the response is "exceptional," the defendant made no showing that his response to sex offender treatment was exceptional (seePeople v. Rogers, 222 A.D.3d 894, 896, 203 N.Y.S.3d 106).