PEOPLE v. ROBINSON (2008)

Appeal by the defendant from an order of the County Court, Suffolk County (Hinrichs, J.), dated March 13, 2007, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed, without costs or disbursements.

 The County Court's designation of the defendant as a level three sex offender under the Sex Offender Registration Act (hereinafter SORA) is supported by clear and convincing evidence (see Correction Law art. 6-C;  People v. Dong V. Dao, 9 A.D.3d 401, 401-402, 779 N.Y.S.2d 914;  People v. Smith, 5 A.D.3d 752, 773 N.Y.S.2d 568;  People v. Moore, 1 A.D.3d 421, 766 N.Y.S.2d 700).   Contrary to the defendant's contentions, the People established by clear and convincing evidence that he had a history of substance abuse, and based on his own admissions was using marijuana and/or alcohol at the time of the underlying incidents (see SORA:  Risk Assessment Guidelines and Commentary [2006 ed.] [hereinafter the SORA Guidelines] at 5;  People v. Goodwin, 49 A.D.3d 619, 620-621, 854 N.Y.S.2d 422;  see generally People v. Mingo, 49 A.D.3d 148, 150, 850 N.Y.S.2d 151;  People v. Dong V. Dao, 9 A.D.3d at 401-402, 779 N.Y.S.2d 914).   Moreover, as the County Court correctly opined, the SORA Guidelines expressly provides for an addition of 15 points for factor No. 11 [drug or alcohol abuse] “if an offender has a substance abuse history or was abusing drugs and or alcohol at the time of the offense ” (SORA Guidelines at 15 [emphasis added] ).

 In addition, the County Court providently exercised its discretion in denying the defendant's request for a downward departure from his presumptive level three sex offender status (see People v. Pietarniello, 53 A.D.3d 475, 862 N.Y.S.2d 69;  People v. Taylor, 47 A.D.3d 907, 908, 850 N.Y.S.2d 195, lv. denied 10 N.Y.3d 709, 859 N.Y.S.2d 394, 889 N.E.2d 81;  People v. Adams, 44 A.D.3d 1020, 845 N.Y.S.2d 375, lv. denied 9 N.Y.3d 818, 852 N.Y.S.2d 14, 881 N.E.2d 1201).   The defendant did not demonstrate mitigating factors of a kind or to a degree not otherwise taken into account by the SORA Guidelines that warranted such a departure (see SORA Guidelines at 4;  People v. Pietarniello, 53 A.D.3d 475, 862 N.Y.S.2d 69;  People v. Taylor, 47 A.D.3d 907, 908, 850 N.Y.S.2d 195, lv. denied 10 N.Y.3d 709, 859 N.Y.S.2d 394, 889 N.E.2d 81;  People v. Adams, 44 A.D.3d 1020, 845 N.Y.S.2d 375, lv. denied 9 N.Y.3d 818, 852 N.Y.S.2d 14, 881 N.E.2d 1201).