People v. Van Phu Bui , 156 A.D.3d 448 ( 2017 )

People v Van Phu Bui (2017 NY Slip Op 08614)

People v Van Phu Bui

2017 NY Slip Op 08614

Decided on December 7, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 7, 2017
Manzanet-Daniels, J.P., Mazzarelli, Kapnick, Webber, JJ.

5166 1143/95

[*1]The People of the State of New York, Respondent,

v

Van Phu Bui, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Desiree Sheridan of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (James J. Wen of counsel), for respondent.

Order, Supreme Court, Bronx County (Albert Lorenzo, J.), entered on or about December 3, 2014, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly assessed points for a history of drug or alcohol abuse, based upon defendant's admission to probation officials (see e.g. People v Kelly, 69 AD3d 498 [1st Dept 2010]) that he periodically abused alcohol and was smoking marijuana at the time of the underlying offense. There was clear and convincing evidence of such abuse, satisfying the standard set forth in People v Palmer (20 NY3d 373, 378-379 [2013]).

The court providently exercised its discretion when it declined to grant a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument, or were outweighed by the egregiousness of the underlying crime.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 7, 2017

CLERK