PEOPLE v. RIVERA (2025)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about August 25, 2022, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The court properly assessed 15 points under the risk factor for drug or alcohol abuse (see generally People v. Palmer, 20 N.Y.3d 373, 378–379, 960 N.Y.S.2d 719, 984 N.E.2d 917 [2013]).  Despite defendant's scores on the screening instruments during his prison intake, the People presented clear and convincing evidence that defendant had a history of cocaine abuse, based on his own admissions to correction personnel (see 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]).  Defendant admitted that he abused cocaine, and his drug use was not too remote in time to support the assessment of points since the case summary indicates that his drug use continued in prison (see People v. Bean, 190 A.D.3d 622, 623, 139 N.Y.S.3d 67 [1st Dept. 2021], lv denied 36 N.Y.3d 913, 2021 WL 1804669 [2021]).

The court providently exercised its discretion when it declined 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 adequately taken into account by the risk assessment instrument or were outweighed by the seriousness of defendant's sexual abuse of three young boys (see People v. Williams, 220 A.D.3d 512, 513, 196 N.Y.S.3d 447 [1st Dept. 2023], lv denied 41 N.Y.3d 905, 2024 WL 1724981 [2024]).  Defendant's rehabilitation in prison, participation in prison programming, family support, employment prospects, and lack of a criminal history were adequately taken into account, and defendant has not shown that his age, efforts at rehabilitation, claimed support network, and employment prospects reduced his risk of reoffense to an extent warranting a departure.