People v Parker, 2023 NY Slip Op 00745 [213 AD3d 472]

February 9, 2023

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

William Parker, Appellant.

Justine M. Luongo, The Legal Aid Society, New York (Susan Epstein of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Julia L. Chariott of counsel), for respondent.

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about June 30, 2017, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Defendant’s history, viewed as a whole, provided clear and convincing evidence supporting the court’s assessment of 15 points under the risk factor for a history of drug or alcohol abuse ( see generally People v Palmer , 20 NY3d 373 , 378-379 [2013]). Defendant’s history of significant substance abuse was not remote, when viewed in light of his recent drug convictions. Those convictions were not trivial, because they demonstrated that defendant’s drug problem had not abated.

In any event, regardless of whether defendant’s correct point score is 100, or 85 as he argues, the record supports the court’s discretionary upward departure to risk level three ( see People v Gillotti , 23 NY3d 841 , 861-862 [2014]). Defendant’s documented problems with impulse control and propensity for violence are aggravating factors not adequately accounted for by the risk assessment instrument, and these factors were established by clear and convincing evidence ( see People v Paterson , 205 AD3d 507 [1st Dept 2022], lv denied 38 NY3d 914 [2022]). Concur—Webber, J.P., Oing, González, Scarpulla, Rodriguez, JJ..