| People v Woodward |
| 2021 NY Slip Op 05178 |
| Decided on September 30, 2021 |
| 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 and Entered: September 30, 2021
Before: Manzanet-Daniels, J.P., Kern, Oing, Rodriguez, Higgitt, JJ.
Ind No. 4305/00 Appeal No. 14244 Case No. 2020-00754
v
Shawn Woodward, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Meghan McLoughlin of counsel), for respondent.
Order, Supreme Court, New York County (Thomas A. Farber, J.), entered on or about December 4, 2019, 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 defendant 15 points under the risk factor for drug and alcohol abuse (see generally People v Palmer, 20 NY3d 373, 378-79 [2013]). Defendant's admission to correction officials that he had abused marijuana and alcohol, his failure to complete alcohol treatment while in prison, and his accrual of six Tier III violations for drugs or alcohol abuse while in prison constituted clear and convincing evidence of substance abuse rather than mere use (see e.g. People v Gonzalez, 157 AD3d 409 [1st Dept 2018], lv denied 31 NY3d 901 [2018]).
In any event, regardless of whether defendant's correct point score is 130, as found by the court, or 115, as he contends, he remains a level three offender, and we find no basis for a downward departure (see generally People v Gillotti, 23 NY3d 841 [2014]). There were no mitigating factors that were not adequately taken into account by the guidelines or outweighed by aggravating factors.THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: September 30, 2021