People v Beaker

People v Beaker 2017 NY Slip Op 04569 Decided on June 8, 2017 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 June 8, 2017
Friedman, J.P., Gische, Kapnick, Kahn, Gesmer, JJ.
4223 2431/01

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

v

Anthony Beaker, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Adrienne M. Gantt of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Peter D. Coddington of counsel), for respondent.

Order, Supreme Court, Bronx County (Steven L. Barrett, J.), entered February 13, 2014, 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 under the risk factor for drug or alcohol abuse, based on the presentence report regarding an earlier conviction and information in the case summary (see e.g. People v Johnson, 77 AD3d 548 [1st Dept 2010], lv denied 16 NY3d 705 [2011]). In any event, regardless of whether defendant's correct point score is 130 or 115 points, he remains a level three offender, and we find no basis for a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). The fact that defendant has been deported is not an appropriate basis for such a departure (see e.g. People v Zepeda, 124 AD3d 417 [1st Dept 2015], lv denied 25 NY3d 902 [2015]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 8, 2017

CLERK