People v. Tamares , 997 N.Y.S.2d 316 ( 2014 )

People v Tamares (2014 NY Slip Op 09042)

People v Tamares

2014 NY Slip Op 09042

Decided on December 30, 2014

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 30, 2014
Sweeny, J.P., Andrias, Saxe, DeGrasse, Gische, JJ.

13850 2041/11

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

v

Delfino Tamares, Defendant-Appellant.

Steven Banks, The Legal Aid Society, New York (Natalie Rea of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Manu K. Balachandran of counsel), for respondent.

Order, Supreme Court, New York County (Michael R. Sonberg, J.), entered on or about December 6, 2012, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Defendant's challenge to an assessment of 15 points under the risk factor for alcohol abuse is unpreserved, as well as being unsupported by a sufficient factual record, and we decline to review it in the interest of justice. In any event, even without these points, defendant remains a level two offender.

Regardless of whether defendant's correct point score is 95 or 80, we find no basis for a discretionary downward departure. The underlying sexual offenses were committed against young children. Defendant's good disciplinary record while incarcerated was adequately taken into account by the risk assessment instrument (see People v Gillotti, 23 NY3d 841, 861 [2014]), and his other arguments in support of a downward departure are unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 30, 2014

CLERK