People v Marcus

People v Marcus 2007 NY Slip Op 00218 [36 AD3d 468] January 11, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 14, 2007

The People of the State of New York, Respondent,
v
Henry Marcus, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Martin M. Lucente of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Meredith Boylan of counsel), for respondent.

Order, Supreme Court, New York County (Brenda Soloff, J.), entered on or about July 15, 2005, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly assessed 15 points for drug abuse, since defendant's possession of crack cocaine immediately after his discharge from parole supervision, when he was no longer facing drug testing, and less than two years before his reclassification hearing, was not excessively remote (see People v Wilkens, 33 AD3d 399 [2006]). The court properly concluded that defendant's present circumstances did not warrant a downward departure from his presumptive risk level (see People v Guaman, 8 AD3d 545 [2004]). Defendant's challenge to the choice of risk factors made by the Legislature and the Board of Examiners of Sex Offenders is unavailing (see People v Bligen, 33 AD3d 489 [2006]; People v Joe, 26 AD3d 300 [2006], lv denied 7 NY3d 703 [2006]). Concur—Tom, J.P., Mazzarelli, Andrias, Marlow and Gonzalez, JJ.