People v. Hernandez , 153 A.D.3d 862 ( 2017 )

People v Hernandez (2017 NY Slip Op 06303)

People v Hernandez

2017 NY Slip Op 06303

Decided on August 23, 2017

Appellate Division, Second 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 August 23, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RANDALL T. ENG, P.J.
JOHN M. LEVENTHAL
SANDRA L. SGROI
JOSEPH J. MALTESE, JJ.

2014-01998

[*1]People of State of New York, respondent,

v

Rodolfo Hernandez, appellant.

Lynn W. L. Fahey, New York, NY (Anna Pervukhin of counsel), for appellant.

Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant, as limited by his brief, from so much of an order of the Supreme Court, Richmond County (Rooney, J.), dated February 18, 2014, as, upon, in effect, reargument, adhered to its prior determination in an order dated February 11, 2014, made after a hearing, designating him a level two sex offender pursuant to Correction Law article 6-C.

ORDERED that the order dated February 18, 2014, is affirmed insofar as appealed from, without costs or disbursements.

Contrary to the defendant's contention, the People established, by clear and convincing evidence, that the assessment of 15 points under risk factor 11, for a history of alcohol abuse, was appropriate (see People v Henriquez, 146 AD3d 911; People v Zavala, 114 AD3d 653, 654).

Contrary to the defendant's further contention, the Supreme Court properly denied his application for a downward departure (see People v Fessel, 149 AD3d 1113; People v Calle-Calle, 145 AD3d 804; People v Vizcarra, 138 AD3d 815, 816).

ENG, P.J., LEVENTHAL, SGROI and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court