People v. Faulkner

2017 NY Slip Op 5051, 151 A.D.3d 601, 55 N.Y.S.3d 249

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 20, 2017
• Docket: 4318 1489/12
• Status: Published

Opinion

Order, Supreme Court, New York County (Daniel P. FitzGerald, J.), entered on or about September 25, 2015, which adjudicated defendant a level three sexually violent predicate offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly assessed 20 points under risk factor 13 for unsatisfactory conduct while confined, based on an incident where he sexually harassed a nurse (see People v Birch, 99 AD3d 422 [1st Dept 2012], lv denied 20 NY3d 854 [2012]). In any event, without those points, defendant would remain a level three offender because of both his point score and the presumptive override for a prior felony sex crime conviction, and there is no basis for a downward departure. The mitigating factors cited by defendant are outweighed by the seriousness of the underlying offense (see People v Gillotti, 23 NY3d 841 [2014]).

The court properly designated defendant a sexually violent offender because he was convicted of an enumerated offense, and it lacked discretion to do otherwise (see People v Bullock, 125 AD3d 1 [1st Dept 2014], lv denied 24 NY3d 915 [2015]).

Concur — Friedman, J.P., Renwick, Manzanet-Daniels, Kapnick and Gesmer, JJ.