General
The People of the State of New York, Respondent, v. Delfino Tamares, Appellant
123 A.D.3d 632997 N.Y.S.2d 316·New York Supreme Court, Appellate Division·2014·NY
Concur — Sweeny, J.P., Andrias, Saxe, DeGrasse and Gische, JJ.
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Opinion
The People of the State of New York, Respondent, v Delfino Tamares, Appellant.
[997 NYS2d 316]
[MAJORITY]
Order, Supreme Court, New York County (Michael R. Sonberg, J.), entered on or about December 6, 2012, 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.
Defendant’s challenge to an assessment of 15 points under the risk factor for alcohol abuse is unpreserved, as well as being unsupported by a sufficient factual record, and we decline to review it in the interest of justice. In any event, even without these points, defendant remains a level two offender.
Regardless of whether defendant’s correct point score is 95 or 80, we find no basis for a discretionary downward departure. The underlying sexual offenses were committed against young children. Defendant’s good disciplinary record while incarcerated was adequately taken into account by the risk assessment instrument (see People v Gillotti, 23 NY3d 841, 861 [2014]), and his other arguments in support of a downward departure are unavailing.
Concur — Sweeny, J.P., Andrias, Saxe, DeGrasse and Gische, JJ.