| People v Reyes |
| 2008 NY Slip Op 01383 [48 AD3d 267] |
| February 14, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Basilio Montezuma Reyes, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Lucy Jane Lang of counsel), forrespondent.
Order, Supreme Court, New York County (Ruth Pickholz, J.), entered on or about May 25,2006, which adjudicated defendant a level three sex offender pursuant to the Sex OffenderRegistration Act (Correction Law art 6-C), unanimously affirmed, without costs.
The court properly assessed 30 points under the risk factor for prior crimes based ondefendant's conviction of second-degree burglary, which is a "violent felony" under Penal Law§ 70.02 (1) (b), and is therefore a "violent felony" under the guidelines of the Board ofExaminers of Sex Offenders (People v Wroten, 286 AD2d 189, 197-199 [2001], lvdenied 97 NY2d 610 [2002]). The guidelines' use of the Penal Law definition is consistentwith the intent of the underlying statute (Correction Law § 168-l [5] [b] [ii], [iii]),which does not suggest in any manner that only those prior crimes that involve actual violenceshould be considered.
The court also properly assessed 15 points under the risk factor for drug or alcohol abuse,based on defendant's admissions to drug abuse (see People v Roland, 292 AD2d 271[2002], lv denied 98 NY2d 614 [2002]). Contrary to defendant's argument, the applicableguideline requires a history of substance abuse, and not necessarily a drug-relatedconviction. We have considered and rejected defendant's remaining arguments concerning thecourt's assessment under this risk factor.[*2]
Defendant did not establish any special circumstanceswarranting a downward departure from his presumptive risk level (see People v Guaman, 8 AD3d545 [2004]). Concur—Lippman, P.J., Tom, Buckley and Gonzalez, JJ.