PEOPLE v. MARCUS

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

The PEOPLE of the State of New York, Respondent, v. Henry MARCUS, Defendant-Appellant.

Decided: January 11, 2007

TOM, J.P., MAZZARELLI, ANDRIAS, MARLOW, GONZALEZ, JJ. Steven Banks, The Legal Aid Society, New York (Martin M. Lucente of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Meredith Boylan of counsel), for respondent.

Order, Supreme Court, New York County (Brenda Soloff, J.), entered on or about July 15, 2005, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art. 6-C), unanimously affirmed, without costs.

The court properly assessed 15 points for drug abuse, since defendant's possession of crack cocaine immediately after his discharge from parole supervision, when he was no longer facing drug testing, and less than two years before his reclassification hearing, was not excessively remote (see People v. Wilkens, 33 A.D.3d 399, 822 N.Y.S.2d 79 [2006] ).   The court properly concluded that defendant's present circumstances did not warrant a downward departure from his presumptive risk level (see People v. Guaman, 8 A.D.3d 545, 778 N.Y.S.2d 704 [2004] ).   Defendant's challenge to the choice of risk factors made by the Legislature and the Board of Examiners of Sex Offenders is unavailing (see People v. Bligen, 33 A.D.3d 489, 823 N.Y.S.2d 42 [2006];  People v. Joe, 26 A.D.3d 300, 810 N.Y.S.2d 63 [2006], lv. denied 7 N.Y.3d 703, 819 N.Y.S.2d 870, 853 N.E.2d 241 [2006] ).