
    The People of the State of New York, Respondent, v Gregory Santogual, Appellant.
    [66 NYS3d 616]
   Appeal by the defendant from an order of the Supreme Court, Kings County (Wayne M. Ozzi, J.), dated November 21, 2012, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

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

In this proceeding pursuant to the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]), the Supreme Court assessed the defendant 130 points on the risk assessment instrument (hereinafter RAI), within the range for a presumptive designation as a level three sex offender. Additionally, the court denied the defendant’s request for a downward departure from that presumptive risk level, and it designated him a level three sex offender. The defendant challenges the assessment of 15 points under risk factor 11 (drug or alcohol abuse), as well as the court’s denial of his request for a downward departure.

The Supreme Court erred in assessing the defendant 15 points under risk factor 11. Assessment of points in that category may be appropriate if the offender has a “history” of substance abuse or if the defendant “was abusing drugs and or alcohol at the time of the offense” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006] [hereinafter Guidelines]; see People v Palmer, 20 NY3d 373, 379-380 [2013]). Here, there was no contention that the defendant was abusing drugs or alcohol at the time of the offense, and the case summary itself stated that there “was no evidence of a substance abuse history.” The court’s assessment of points under this factor was based on proof of a single disciplinary adjudication for drug use. This adjudication in itself was insufficient to establish that the defendant had a “history” of substance abuse within the meaning of this risk factor (Guidelines at 15; cf. People v Palmer, 20 NY3d at 378; People v Marsh, 116 AD3d 680, 681 [2014]).

Nevertheless, even with the subtraction of the 15 points erroneously assessed under risk factor 11, the defendant’s point total on the RAI was in the range for a presumptive level three designation. The defendant contends that the Supreme Court should have granted his request for a downward departure. A court determining a defendant’s risk level under SORA may not downwardly depart from the presumptive risk level unless the defendant first identifies and proves by a preponderance of the evidence the facts in support of “a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines” (People v Lathan, 129 AD3d 686, 687 [2015] [internal quotation marks omitted]; see Guidelines at 4; People v Moultrie, 147 AD3d 800, 801 [2017]). An offender’s rehabilitation as evidenced by the totality of the record may, under some circumstances, constitute a proper mitigating factor for a downward departure (see People v Williams, 148 AD3d 540, 541 [2017]; People v Moultrie, 147 AD3d at 801; People v Rivera, 109 AD3d 805, 806 [2013]; People v Madison, 98 AD3d 573, 574 [2012]). In this case, however, the defendant did not prove by a preponderance of the evidence the facts in support of this mitigating factor (see People v Moultrie, 147 AD3d at 801). Accordingly, the court properly denied the defendant’s request for a downward departure and properly designated the defendant a level three sex offender (see id.).

Balkin, J.R, Austin, Sgroi and Brathwaite Nelson, JJ., concur.  