People v Nelson, 2016 NY Slip Op 08308 [145 AD3d 498]

December 8, 2016

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Roland Nelson, Appellant.

Seymour W. James, The Legal Aid Society, New York (Andrea L. Bible of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Ross D. Mazer of counsel), for respondent.

Order, Supreme Court, New York County (Renee A. White, J.), entered October 29, 2013, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court providently assessed 15 points under the risk factor for drug abuse, because defendant was found to have possessed drugs while in prison and admitted that he had previously used cocaine and marijuana ( see People v Palmer , 20 NY3d 373 [2013]). Furthermore, regardless of whether his correct point score is 85 or 100, he remains a level two offender, and there is no basis for a downward departure ( see People v Gillotti , 23 NY3d 841 [2014]) in light of the seriousness of the underlying offense, which involved repeated sex acts against a vulnerable child.

Defendant’s procedural claims regarding the court’s denial of a downward departure are unpreserved, and in any event do not warrant a remand for further proceedings. Concur—Mazzarelli, J.P., Friedman, Acosta, Andrias and Moskowitz, JJ..