| People v Robinson |
| 2008 NY Slip Op 07893 [55 AD3d 708] |
| October 14, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v NicholasRobinson, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Edward A. Bannan and Glenn Green ofcounsel), for respondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Hinrichs, J.), datedMarch 13, 2007, which, after a hearing, designated him a level three sex offender pursuant toCorrection Law article 6-C.
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 SexOffender Registration Act (hereinafter SORA) is supported by clear and convincing evidence (seeCorrection Law art 6-C; People v DongV. Dao, 9 AD3d 401, 401-402 [2004]; People v Smith, 5 AD3d 752 [2004]; People v Moore, 1 AD3d 421 [2003]).Contrary to the defendant's contentions, the People established by clear and convincing evidence thathe had a history of substance abuse, and based on his own admissions was using marijuana and/oralcohol at the time of the underlying incidents (see Sex Offender Registration Act: RiskAssessment Guidelines and Commentary, at 5 [2006] [hereinafter the SORA Guidelines]; People v Goodwin, 49 AD3d 619,620-621 [2008]; see generally People vMingo, 49 AD3d 148, 150 [2008]; People v Dong V. Dao, 9 AD3d at 401-402).Moreover, as the County Court correctly opined, the SORA Guidelines expressly provides for anaddition of 15 points for factor No. 11 (drug or alcohol abuse) "if an offender has a substance abusehistory 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 requestfor a downward departure from his presumptive level three sex offender status (see People v Pietarniello, 53 AD3d475 [2008]; People v Taylor, 47AD3d 907, 908 [2008], lv denied 10 NY3d 709 [2008]; People v Adams, 44 AD3d 1020[2007], lv denied 9 NY3d 818 [2008]). The defendant did not demonstrate mitigating [*2]factors of a kind or to a degree not otherwise taken into account by theSORA Guidelines that warranted such a departure (see SORA Guidelines at 4; People v Pietarniello, 53 AD3d 475[2008]; People v Taylor, 47 AD3d907, 908 [2008], lv denied 10 NY3d 709 [2008]; People v Adams, 44 AD3d 1020 [2007], lv denied 9 NY3d818 [2008]). Spolzino, J.P., Florio, Miller and Leventhal, JJ., concur.