PEOPLE v. FELDMETH (2024)

Order, Supreme Court, New York County (Steven M. Statsinger, J.), entered on or about December 10, 2019, which adjudicated defendant a level two predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The court properly assessed points under the risk factor for a history of substance abuse, given defendant's admission to daily use of marijuana and his prior drug-related convictions (see People v. Diaz, 220 A.D.3d 467, 467, 197 N.Y.S.3d 201 [1st Dept. 2023], lv denied 41 N.Y.3d 904, 2024 WL 1161406 [2024];  People v. Parks, 216 A.D.3d 462, 462, 189 N.Y.S.3d 112 [1st Dept. 2023]).  Defendant's contention that his marijuana use was for medical purposes is unsupported by the record.

The court providently exercised its discretion in declining to grant a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  Defendant has not established that his physical condition would minimize his risk of reoffending, particularly given that his condition did not prevent him from committing the underlying and a prior similar crime (see People v. Sudderth, 171 A.D.3d 593, 96 N.Y.S.3d 852 [1st Dept. 2019], lv denied 33 N.Y.3d 913, 2019 WL 4267890 [2019];  People v. Rodriguez, 101 A.D.3d 630, 955 N.Y.S.2d 867 [1st Dept. 2012], lv denied 21 N.Y.3d 851, 2013 WL 1299941 [2013]).  Defendant was already confined to a wheelchair when he committed the offenses, and had in fact exploited his disability in both instances, when he approached the victims under the guise of needing assistance and then committing the sexual misconduct as they aided him.  The impact that a risk level two adjudication has on defendant's eligibility to remain at the nursing home where he resides and receives medical care does not qualify as a mitigating circumstance, as it has no bearing on his risk of reoffense or the threat he poses to public safety (see People v. Bevel, 224 A.D.3d 430, 431, 204 N.Y.S.3d 103 [1st Dept. 2024];  People v. McFarland, 120 A.D.3d 1121, 1122, 992 N.Y.S.2d 414 [1st Dept. 2014], lv denied 24 N.Y.3d 1053, 999 N.Y.S.2d 360, 24 N.E.3d 597 [2014]).  Further, defendant committed the underlying crime after having been adjudicated risk level one sex offender in connection with the prior offense (see People v. Delgado, 130 A.D.3d 484, 485, 11 N.Y.S.3d 855 [1st Dept. 2015], lv denied 26 N.Y.3d 909, 2015 WL 6181744 [2015]).