PEOPLE v. LINEBERGER

The People met their burden of establishing, by clear and convincing evidence, risk factors bearing sufficient total points to support a level three sex offender adjudication. The court properly assessed 15 points for the risk factor of history of drug or alcohol abuse, based on defendant's extensive history of drug use ( see People v Warren, 42 AD3d 593, 594, lv denied 9 NY3d 810).

Defendant's challenge to an assessment of 10 points under another risk factor is unavailing. In any event, even without that assessment he would remain a level three offender, and we find no basis for a discretionary downward departure ( see People v Mingo, 12 NY3d 563, 568 n 2 [2009]; People v Johnson, 11 NY3d 416, 421), particularly in light of the seriousness of the underlying sex crime. The mitigating circumstances cited by defendant were adequately taken into account by the risk assessment instrument.