PEOPLE v. PARKS (2023)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about April 8, 2015, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

Clear and convincing evidence supported the assessment of 15 points for defendant's history of substance abuse.  Defendant used marijuana on a daily basis, which is a recognized form of substance abuse for purposes of this risk factor (see People v. Nieves, 179 AD3d 849 [2d Dept 2020], lv denied 35 NY3d 906 [2020];  see also People v. Padilla, 116 AD3d 566, 567 [1st Dept 2014], lv denied 24 NY3d 902 [2014]).  Clear and convincing evidence also supported the assessment of 10 points for unsatisfactory conduct while confined, based on defendant's three Tier II infractions and his Tier III violation approximately 11 months before his sex offender adjudication (see People v. Morales, 157 AD3d 475, 475 [1st Dept 2018], lv denied 31 NY3d 903 [2018]).

The court providently exercised its discretion when it declined to grant a downward departure (see People v. Gillotti, 23 NY3d 841 [2014]).  The allegedly mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument or were outweighed by aggravating factors.