Opinion
October 14, 2008.
Appeal by the defendant from an order of the County Court, Suffolk County (Hinrichs, J.), dated March 13, 2007, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.
Before: Spolzino, J.P., Florio, Miller and Leventhal, JJ.
Ordered that the order is affirmed, without costs or disbursements.
The County Court's designation of the defendant as a level three sex offender under the Sex Offender Registration Act (hereinafter SORA) is supported by clear and convincing evidence ( see Correction Law art 6-C; People v Dong V Dao, 9 AD3d 401, 401-402; People v Smith, 5 AD3d 752; People v Moore, 1 AD3d 421). Contrary to the defendant's contentions, the People established by clear and convincing evidence that he had a history of substance abuse, and based on his own admissions was using marijuana and/or alcohol at the time of the underlying incidents ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 5 [2006] [hereinafter the SORA Guidelines]; People v Goodwin, 49 AD3d 619, 620-621; see generally People v Mingo, 49 AD3d 148, 150; People v Dong V Dao, 9 AD3d at 401-402). Moreover, as the County Court correctly opined, the SORA Guidelines expressly provides for an addition of 15 points for factor No. 11 (drug or alcohol abuse) "if an offender has a substance abuse history or was abusing drugs and or alcohol at the time of the offense" (SORA Guidelines at 15 [emphasis added]).
In addition, the County Court providently exercised its discretion in denying the defendant's request for a downward departure from his presumptive level three sex offender status ( see People v Pietarniello, 53 AD3d 475; People v Taylor, 47 AD3d 907, 908, lv denied 10 NY3d 709; People v Adams, 44 AD3d 1020, lv denied 9 NY3d 818). The defendant did not demonstrate mitigating factors of a kind or to a degree not otherwise taken into account by the SORA Guidelines that warranted such a departure ( see SORA Guidelines at 4; People v Pietarniello, 53 AD3d 475; People v Taylor, 47 AD3d 907, 908, lv denied 10 NY3d 709; People v Adams, 44 AD3d 1020, lv denied 9 NY3d 818).