People v. Zewge , 38 N.Y.S.3d 536 ( 2016 )

People v Zewge (2016 NY Slip Op 06172)

People v Zewge

2016 NY Slip Op 06172

Decided on September 27, 2016

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 September 27, 2016
Sweeny, J.P., Manzanet-Daniels, Feinman, Kapnick, Webber, JJ.

1735 2650/10

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

v

Sinke Zewge, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Christine DiDomenico of counsel), for respondent.

Order, Supreme Court, New York County (Bruce Allen, J.), rendered September 5, 2014, 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.

The court properly considered defendant's prior youthful offender adjudication in assessing points under the risk factor for prior crimes (see People v Wilkins, 77 AD3d 588 [1st Dept 2010], lv denied 16 NY3d 703 [2011]). The court also properly assessed points under the risk factor for alcohol abuse, because defendant's admissions to correction officials (see e.g. People v Kelly, 69 AD3d 498 [1st Dept 2010]) provided clear and convincing evidence of such abuse, satisfying the standard set forth in People v Palmer (20 NY3d 373, 378-379 [2013]).

The court properly exercised its discretion when it declined to grant a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). There were no mitigating factors that were not adequately taken into account by the risk assessment instrument,and the record does not establish any basis for a downward departure.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 27, 2016

CLERK