PEOPLE v. LOMBARD

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

PEOPLE of the State of New York, respondent, v. Vito LOMBARD, appellant.

Decided: June 20, 2006

THOMAS A. ADAMS, J.P., GLORIA GOLDSTEIN, DANIEL F. LUCIANO, and ROBERT A. SPOLZINO, JJ. Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg and Tammy Feman of counsel), for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Judith R. Sternberg of counsel), for respondent.

Appeal by the defendant from an order of the Supreme Court, Nassau County (Donnino, J.), dated January 13, 2005, which, after a hearing pursuant to Correction Law article 6-C, designated him a level three sex offender.

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

 The defendant was presumptively a level three sex offender based upon his history of drug and alcohol abuse and other factors which were not contested by him, resulting in 115 points on the Risk Assessment Instrument, which was five points higher than that required for a presumptive level three sex offender.   The Supreme Court considered the defendant's successful completion of substance abuse treatment in determining whether there should be a downward departure from the risk assessment recommendation.   In the exercise of its sound discretion (see People v. McCormick, 21 A.D.3d 1221, 1222, 801 N.Y.S.2d 432), the Supreme Court declined to grant a downward departure from the presumptive risk assessment, after weighing the defendant's recent success against his lengthy history of substance abuse.

 The defendant's contention that he was improperly assessed an additional five points on the ground that he was no longer receiving specialized supervision for a total of 120 points on the Risk Assessment Instrument need not be addressed, since he was presumptively a level three sex offender based upon the 115 points assessed for his drug and alcohol abuse and other factors not contested by him.

The appellant's remaining contentions are without merit.

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