People of State of New York, respondent, v. Lino Mendez, appellant. (2010)

Submitted-November 29, 2010

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (J. Goldberg, J.), dated July 2, 2009, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.

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

The Supreme Court's designation of the defendant as a level two sex offender under the Sex Offender Registration Act (hereinafter SORA) was supported by clear and convincing evidence (see Correction Law article 6-C;  People v. Pardo, 50 AD3d 992;  People v. Lawless, 44 AD3d 738;  People v. Hegazy, 25 AD3d 675).   Based upon the defendant's prior conviction of driving while intoxicated, his score on the Michigan Alcoholic Screening test, and facts contained in the case record and presentence report (see Correction Law § 168-n;  People v. Mingo, 12 NY3d 563, 573;  People v. Murphy, 68 AD3d 832;  People v. Smolen, 47 AD3d 623;  People v. Yarborough, 43 AD3d 1129), the Supreme Court properly assessed 15 points under risk factor 11 for a history of alcohol abuse (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 15 [2006 ed.];  People v. Guitard, 57 AD3d 751).

The defendant failed to present any mitigating factors which would warrant a downward departure and, thus, we find no basis to disturb the Supreme Court's designation of the defendant as a level two sex offender (see People v. Blackman, AD3d, 2010 N.Y. Slip Op 08082 [2d Dept 2010];  People v. Baez, AD3d, 2010 N.Y. Slip Op 07070 [2d Dept 2010] ).

MASTRO, J.P., FISHER, ROMAN and SGROI, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court