PEOPLE v. STORY (2024)

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Robert STORY, Defendant–Appellant.

1341

Decided: January 04, 2024

Singh, J.P., Scarpulla, Pitt–Burke, Higgitt, O'Neill Levy, JJ.

Jenay Nurse Guilford, Center for Appellate Litigation, New York (Adrienne Wells of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Larry Glasser of counsel), for respondent.

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about August 13, 2021, 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 court's assessment of 15 points under the risk factor for drug or alcohol abuse was supported by clear and convincing evidence, which consisted of defendant's admissions to drug and alcohol use, convictions for drug possession, diagnostic assessment, referral to substance abuse treatment, and disciplinary infraction for alcohol possession (see People v. Neal, 214 A.D.3d 421, 183 N.Y.S.3d 300 [1st Dept. 2023], lv denied 39 N.Y.3d 916, 2023 WL 4003961 [2023]; People v. Correa, 202 A.D.3d 413, 414, 158 N.Y.S.3d 568 [1st Dept. 2022], lv denied 38 N.Y.3d 909, 2022 WL 2126466 [2022]).

The court providently exercised its discretion in declining to grant a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]). The mitigating factors cited by defendant were either adequately taken into account by the risk assessment instrument or were outweighed by the aggravating factors.

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