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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Maurice BUSBY, Defendant-Appellant.

Decided: March 27, 2009

PRESENT:  MARTOCHE, J.P., SMITH, CENTRA, FAHEY, AND PINE, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert B. Hallborg, Jr., of Counsel), for Defendant-Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.

 Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.).   We agree with defendant that County Court's assessment of 20 points under the risk factor based on the victim's alleged mental disability is not supported by clear and convincing evidence (see generally § 168-n[3] ).   We further conclude, however, that the court properly assessed 15 points under the risk factor based on defendant's history of drug and alcohol abuse.   Contrary to defendant's contention, the People presented clear and convincing evidence of defendant's history of drug abuse (see People v. Ramos, 41 A.D.3d 1250, 839 N.Y.S.2d 383, lv. denied 9 N.Y.3d 809, 844 N.Y.S.2d 785, 876 N.E.2d 514;  People v. Vaughn, 26 A.D.3d 776, 777, 809 N.Y.S.2d 718), and defendant presented no evidence of prolonged abstinence “in recent years” (Vaughn, 26 A.D.3d at 777, 809 N.Y.S.2d 718;  see Ramos, 41 A.D.3d 1250, 839 N.Y.S.2d 383).   Even taking into account the 20 point reduction in the total risk factor score, we note that defendant is nevertheless 20 points above the threshold for a level three risk, and the court has already granted his request for a downward departure to a level two risk.   It cannot be said that the court abused its discretion in refusing to grant defendant a further downward departure to a level one risk (see generally People v. Adams, 52 A.D.3d 1237, 862 N.Y.S.2d 223, lv. denied 11 N.Y.3d 705, 866 N.Y.S.2d 609, 896 N.E.2d 95;  People v. Marks, 31 A.D.3d 1142, 1143, 817 N.Y.S.2d 555, lv. denied 7 N.Y.3d 715, 826 N.Y.S.2d 181, 859 N.E.2d 921;  People v. Guaman, 8 A.D.3d 545, 778 N.Y.S.2d 704).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.