People v. Lebron

2016 NY Slip Op 6766, 143 A.D.3d 535, 38 N.Y.S.3d 804

Opinion

Order, Supreme Court, New York County (Bonnie G. Wittner, J.), entered on or about April 9, 2013, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Regardless of whether defendant’s correct point score would make him a presumptive level two offender, his prior felony sex crime conviction automatically resulted in an override to level three (see People v Howard, 27 NY3d 337, 342 [2016]), and the court properly exercised its discretion when it declined to grant a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). Notwithstanding the mitigating factors defendant cites, his two sex crime convictions involved similar conduct that was violent and predatory, and thereby demonstrated a serious threat of recidivism (see e.g. People v Torres, 90 AD3d 442 [1st Dept 2011], lv denied 18 NY3d 809 [2012]). In any event, we also find that the court properly assessed 15 points under the risk factor for drug or alcohol abuse, so that defendant qualifies as a level three offender based on his point score as well.

Concur — Tom, J.P., Renwick, Manzanet-Daniels, Gische and Webber, JJ.