Opinion
13288 Ind. No. 99085/16 Case No. 2018-3898
03-09-2021
Janet E. Sabel, The Legal Aid Society, New York (Natalie Rea of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Julia L. Chariott of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Natalie Rea of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Julia L. Chariott of counsel), for respondent.
Gische, J.P., Singh, Moulton, Gonza´lez, JJ.
Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about March 31, 2017, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.
Clear and convincing evidence supported the court's assessment of 15 points under the risk factor for a history of drug or alcohol abuse (see generally People v. Howard, 27 N.Y.3d 337, 341, 33 N.Y.S.3d 132, 52 N.E.3d 1158 [2016] ). Contrary to defendant's contention, the record does not establish a prolonged period of abstinence, or abstinence from drugs at the time of the offense.
Regardless of whether defendant's correct point score is 105, as found by the court, or 90, as he contends, he remains a level two offender, and we find no basis for a downward departure (see generally People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). There was no overassessment of defendant's risk regarding his sexual relationship with an underage victim, given the circumstances surrounding the offense and the approximately 16–year age disparity between defendant and the 15–year–old victim (see e. g. People v. Catalano, 178 A.D.3d 1460, 112 N.Y.S.3d 638 [4th Dept. 2019] lv denied 35 N.Y.3d 906, 2020 WL 3096648 [2020] ). We also find nothing about defendant's risk assessment in Massachusetts, where he was also found to be at a moderate risk for reoffending, that would support a downward departure.