People v Valentin

People v Valentin 2008 NY Slip Op 09652 [57 AD3d 268] December 9, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

The People of the State of New York, Respondent,
v
Eddie Valentin, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Joanne Legano Ross of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Elizabeth Squires of counsel), for respondent.

Order, Supreme Court, New York County (Renee Allyn White, J.), entered on or about June 27, 2006, which adjudicated defendant a level two sex offender under the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court assessed a total of 70 points, which is just below the threshold for a level two adjudication, and then departed upward to level two. The court properly assessed 15 points under the risk factor for drug or alcohol abuse, since defendant had a long history of drug possession convictions that was not excessively remote in time and he had not sufficiently demonstrated a prolonged period of abstinence (see e.g. People v Warren, 42 AD3d 593, 594 [2007], lv denied 9 NY3d 810 [2007]; People v Regan, 46 AD3d 1434 [2007]). The upward departure was supported by clear and convincing evidence of defendant's mental illness, noncompliance with his medication regimen, and his resulting behavior when not medicated (see People v Roland, 292 AD2d 271 [2002], lv denied 98 NY2d 614 [2002]). Concur—Tom, J.P., Gonzalez, Nardelli, Moskowitz and Renwick, JJ.