People v Ashby
2013 NY Slip Op 07162 [111 AD3d 611]
November 6, 2013
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, December 25, 2013


The People of the State of New York, Respondent,
v
Raheim Ashby, Appellant.

[*1] Steven Banks, New York, N.Y. (Laura Lieberman Cohen of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Arieh Schulman of counsel), for respondent.

Appeal by the defendant from an order of the Supreme Court, Kings County (Garnett, J.), dated December 2, 2010, which, after a hearing, designated him a level two sexually violent offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

The Supreme Court properly designated the defendant a level two sexually violent offender. Contrary to the defendant's contention, the Supreme Court properly assessed 15 points under risk factor 11 (Drug or Alcohol Abuse—History of Abuse) (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006]), as the People established by clear and convincing evidence that the defendant had a history of drug abuse (see People v Geehreng, 101 AD3d 975 [2012]; People v Finizio, 100 AD3d 977, 978 [2012]; People v Quinn, 99 AD3d 776, 777 [2012]; People v Crandall, 90 AD3d 628, 629-630 [2011]; People v Warren, 42 AD3d 593, 594 [2007]).

Furthermore, the Supreme Court properly denied the defendant's application for a downward departure (see People v Washington, 105 AD3d 724, 725 [2013]; People v Martinez, 104 AD3d 924 [2013]). Angiolillo, J.P., Hall, Austin and Miller, JJ., concur.