PEOPLE v. WOODWARD (2021)

Order, Supreme Court, New York County (Thomas A. Farber, J.), entered on or about December 4, 2019, 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 defendant 15 points under the risk factor for drug and alcohol abuse (see generally People v. Palmer, 20 N.Y.3d 373, 378–79, 960 N.Y.S.2d 719, 984 N.E.2d 917 [2013]).  Defendant's admission to correction officials that he had abused marijuana and alcohol, his failure to complete alcohol treatment while in prison, and his accrual of six Tier III violations for drugs or alcohol abuse while in prison constituted clear and convincing evidence of substance abuse rather than mere use (see e.g. People v. Gonzalez, 157 A.D.3d 409, 66 N.Y.S.3d 125 [1st Dept. 2018], lv denied 31 N.Y.3d 901, 2018 WL 1415217 [2018]).

In any event, regardless of whether defendant's correct point score is 130, as found by the court, or 115, as he contends, he remains a level three offender, and we find no basis for a downward departure (see generally People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  There were no mitigating factors that were not adequately taken into account by the guidelines or outweighed by aggravating factors.