Opinion
No. 28 Ind No. 6337/08 Case No. 2018-3567
04-13-2023
The People of the State of New York, Respondent, v. Louis Leiva, Defendant-Appellant.
David Loftis, The Legal Aid Society, New York (Lorraine Maddalo of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Anna Notchick of counsel), for respondent.
David Loftis, The Legal Aid Society, New York (Lorraine Maddalo of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Anna Notchick of counsel), for respondent.
Before: Renwick, A.P.J., Moulton, Shulman, Rodriguez, Pitt-Burke, JJ.
Order, Supreme Court, New York County (Anthony J. Ferrara, J.), entered on or about June 9, 2017, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
The court properly assessed points under the risk factor for alcohol and substance abuse. The victim reported that defendant raped her after he had been drinking (see e.g. People v Zewge, 142 A.D.3d 880 [1st Dept 2016]). Defendant admitted drug and alcohol abuse to correction officials and participated in a substance abuse program while incarcerated.
In any event, even were we to find that defendant's correct risk assessment instrument score is 80 points, as defendant contends, he would remain a level two offender and we find no basis for a downward departure (see generally People v Gillotti, 23 N.Y.3d 841 [2014]). The mitigating factors cited by defendant, including his age and completion of treatment programs, were adequately taken into account by the risk assessment instrument, and were outweighed by the seriousness of defendant's multiple rapes of a child who was left in his care.