Opinion
2014-04-17
The PEOPLE of the State of New York, Respondent, v. Oscar PADILLA, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Nancy E. Little of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Malancha Chanda of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Nancy E. Little of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Malancha Chanda of counsel), for respondent.
Order, Supreme Court, New York County (Carol A. Berkman, J.), entered on or about June 23, 2011 which adjudicated defendant a level two sex offender under 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 for defendant's history of substance abuse, since defendant admitted to regular use of ecstasy, marijuana and alcohol. We reject defendant's argument that the use of these illegal substances is akin to occasional social drinking ( see People v. Palmer, 20 N.Y.3d 373, 960 N.Y.S.2d 719, 984 N.E.2d 917 [2013] ). Clear and convincing evidence likewise supported the court's assessment of 20 points for defendant's establishment of a relationship for the purpose of victimization, since the record supports the inference that he established a relationship with the victim, a stranger to him, for the purpose of sexual activity, including employing her as a prostitute.
The court properly exercised its discretion when it declined to grant a downward departure ( see People v. Cintron, 12 N.Y.3d 60, 70, 875 N.Y.S.2d 828, 903 N.E.2d 1149,cert. denied sub nom. Knox v. New York, 558 U.S. 1011, 130 S.Ct. 552, 175 L.Ed.2d 382 [2009];People v. Johnson, 11 N.Y.3d 416, 421, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008] ). Defendant did not demonstrate any mitigating factors not taken into account by the risk assessment instrument that would warrant a downward departure, given the seriousness of the underlying conduct. FRIEDMAN, J.P., SWEENY, ANDRIAS, GISCHE, CLARK, JJ., concur.