| People v Kachatov |
| 2013 NY Slip Op 03651 [106 AD3d 973] |
| May 22, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Baurzhan Kachatov, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L.Mandel, and Morgan J. Dennehy of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Walsh,J.), dated January 13, 2011, which, after a hearing, designated him a level two sexoffender 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, thefacts supporting the assessment of points under the Guidelines issued by the Board ofExaminers of Sex Offenders under New York's Sex Offender Registration Act(see Correction Law art 6-C [hereinafter SORA]; Sex Offender Registration Act:Risk Assessment Guidelines and Commentary at 5 [2006]; People v Harris, 100 AD3d727, 727 [2012], lv denied 20 NY3d 861 [2013]; People v Thompson, 95 AD3d977, 977 [2012]). Here, the hearing court properly designated the defendant a leveltwo sex offender. First, contrary to the defendant's contention, the evidence establishedthat he had a history of alcohol abuse (see People v Palmer, 20 NY3d 373, 377-378 [2013]), sothe hearing court appropriately assessed him 15 points under risk factor 11 ("Drug orAlcohol Abuse"). Including the 15 points, the total assessment of 80 pointspresumptively classified the defendant as a level two sex offender. Moreover, the hearingcourt did not err in refusing to downwardly depart from that presumptive risk level,because, among other things, the defendant failed to show that his expected deportationwas, "as a matter of law, an appropriate mitigating factor" (People v Wyatt, 89 AD3d112, 128 [2011]). Rivera, J.P., Balkin, Dickerson and Cohen, JJ., concur.