People v Lineberger

2011 NY Slip Op 00626

Decided on February 3, 2011

Appellate Division, First Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 3, 2011
Saxe, J.P., Friedman, Catterson, Acosta, Richter, JJ.
4185 4389/07






Steven Banks, The Legal Aid Society, New York (Joanne
Legano Ross of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Patrick J.
Hynes of counsel), for respondent.

Order, Supreme Court, New York County (Laura A. Ward, J.), entered on or about September 18, 2009, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The People met their burden of establishing, by clear and convincing evidence, risk factors bearing sufficient total points to support a level three sex offender adjudication. The court properly assessed 15 points for the risk factor of history of drug or alcohol abuse, based on defendant's extensive history of drug use (see People v Warren, 42 AD3d 593, 594 [2007], lv denied 9 NY3d 810 [2007]).

Defendant's challenge to an assessment of 10 points under another risk factor is unavailing. In any event, even without that assessment he would remain a level three offender, and we
find no basis for a discretionary downward departure (see People v Mingo, 12 NY3d 563, 568 n 2 [2009]; People v Johnson, 11 NY3d 416, 421 [2008]), particularly in light of the seriousness of the underlying sex crime. The mitigating circumstances cited by defendant were adequately taken into account by the risk assessment instrument.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 3, 2011

CLERK