PEOPLE v. ORTIZ (2023)

Order, Supreme Court, Bronx County (Margaret L. Clancy, J.), entered on or about September 28, 2018, as amended June 1, 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 for a history of drug or alcohol abuse.  Defendant's statements to corrections officials that he had a history of alcohol abuse and was “probably drunk” at the time of the offense, along with his referral to an alcohol and substance abuse program, constituted clear and convincing evidence supporting this assessment (see People v. Palmer, 20 NY3d 373, 378–379 [2013];  People v. Sandoval, 176 AD3d 448, 448 [1st Dept 2019], lv denied 35 NY3d 901 [2020];  People v. Van Phu Bui, 156 AD3d 448 [1st Dept 2017], lv denied 31 NY3d 903 [2018]).  Defendant's admission of being intoxicated at the particular time of the crime was sufficiently specific and believable.

The court providently exercised its discretion in declining to grant a downward departure (see People v. Gillotti, 23 NY3d 841 [2014]).  There were no mitigating factors that were not adequately taken into account by the guidelines or outweighed by the seriousness of the underlying crime, which was defendant's second conviction for sexually abusing a child in his family.