Opinion
2014-12-10
PEOPLE of State of New York, respondent, v. Julio VALDEZ, appellant.
Seymour W. James, Jr., New York, N.Y. (Steven J. Miraglia of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Steven J. Miraglia of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.
RUTH C. BALKIN, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and BETSY BARROS, JJ.
Appeal by the defendant from an order of the Supreme Court, Kings County (Sullivan, J.), dated August 27, 2008, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
The People bear of the burden of establishing, by clear and convincing evidence, the facts supporting the assessment of points under the Guidelines issued by the Board of Examiners of Sex Offenders under New York's Sex Offender Registration Act (hereinafter SORA) ( seeCorrection Law § 168, et seq. ; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]; People v. Harris, 100 A.D.3d 727, 727, 953 N.Y.S.2d 671; People v. Thompson, 95 A.D.3d 977, 977, 943 N.Y.S.2d 771). Here, contrary to the defendant's contentions, the hearing court properly assessed 15 points under risk factor 11 (Drug or Alcohol Abuse) ( see People v. Zavala, 114 A.D.3d 653, 654, 979 N.Y.S.2d 660), and under risk factor 12 (Acceptance of Responsibility/Expelled from Treatment) ( see People v. Smith, 78 A.D.3d 917, 917, 911 N.Y.S.2d 451). Indeed, the defendant admitted his long-term substance abuse to the New York City Probation Department when it prepared its presentence report. Additionally, the defendant's statement that he did not know the victim's age was not credible under the circumstances of this case, and constituted an attempt to minimize responsibility. Further, the defendant was expelled from a sex offender treatment program before he was imprisoned. Under these circumstances, the evidence was clear and convincing that the defendant had not accepted responsibility for his sex crime ( see People v. Smith, 78 A.D.3d at 917, 911 N.Y.S.2d 451). Finally, as the defendant failed to identify a mitigating factor that was not adequately taken into account under the Guidelines, a downward departure would not have been proper, and the Supreme Court correctly refused to downwardly depart from the defendant's presumptive risk level ( see People v. Goods, 121 A.D.3d 660, 992 N.Y.S.2d 810; People v. Sooknanan, 119 A.D.3d 540, 540, 988 N.Y.S.2d 267).