People v. Aleman , 2020 NY Slip Op 05597 ( 2020 )

People v Aleman (2020 NY Slip Op 05597)

People v Aleman

2020 NY Slip Op 05597

Decided on October 08, 2020

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

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

Decided and Entered: October 08, 2020
Before: Renwick, J.P., González, Kennedy, Mendez, JJ.

Ind No. 2331/16 Appeal No. 12007 Case No. 2018-4904

[*1]The People of the State of New York, Respondent,

v

Luis Aleman, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Nicole Neckles of counsel), for respondent.

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about October 19, 2018, which adjudicated defendant a level three predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Defendant should not have been scored 15 points for the risk factor of a history of drug or alcohol abuse. Absent any reliable evidence of defendant's use of drugs or alcohol at the time of the offense, and in light of insufficient evidence that he abused drugs or alcohol repeatedly in the past, the People failed to prove that factor by clear and convincing evidence (see People v Weber, 158 AD3d 498, 499 [1st Dept 2018], lv denied 31 NY3d 1089 [2018]).

However, defendant automatically qualifies as a level three offender, independently of any point assessments, based on his prior New Jersey felony sex crime conviction (see People v Howard, 27 NY3d 337, 342 [2016]). We find that the court providently exercised its discretion in denying defendant's request for a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). The various mitigating factors argued by defendant are outweighed by the danger of future recidivism (see People v Guaman, 8 AD3d 545 [2d Dept 2004]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 8, 2020