| People v Valdez |
| 2014 NY Slip Op 08616 [123 AD3d 785] |
| December 10, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Julio Valdez, Appellant. |
Seymour W. James, Jr., New York, N.Y. (Steven J. Miraglia of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (LeonardJoblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.
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 threesex 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, 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(hereinafter SORA) (see Correction Law § 168 et seq.; SexOffender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]; People v Harris, 100 AD3d727, 727 [2012]; People vThompson, 95 AD3d 977, 977 [2012]). Here, contrary to the defendant'scontentions, the hearing court properly assessed 15 points under risk factor 11 (Drug orAlcohol Abuse) (see People vZavala, 114 AD3d 653, 654 [2014]), and under risk factor 12 (Acceptance ofResponsibility/Expelled from Treatment) (see People v Smith, 78 AD3d 917, 917 [2010]). Indeed, thedefendant admitted his long-term substance abuse to the New York City ProbationDepartment when it prepared its presentence report. Additionally, the defendant'sstatement that he did not know the victim's age was not credible under the circumstancesof this case, and constituted an attempt to minimize responsibility. Further, the defendantwas expelled from a sex offender treatment program before he was imprisoned. Underthese circumstances, the evidence was clear and convincing that the defendant had notaccepted responsibility for his sex crime (see People v Smith, 78 AD3d at 917).Finally, as the defendant failed to identify a mitigating factor that was not adequatelytaken into account under the Guidelines, a downward departure would not have beenproper, and the Supreme Court correctly refused to downwardly depart from thedefendant's presumptive risk level (see People v Goods, 121 AD3d 660 [2014]; People v Sooknanan, 119AD3d 540, 540 [2014]). Balkin, J.P., Hall, Austin and Barros, JJ., concur.