Opinion
10-25-2016
The PEOPLE of the State of New York, Respondent, v. Michael LEWIS, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Bonnie C. Brennan of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Robert C. Mciver of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Bonnie C. Brennan of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Robert C. Mciver of counsel), for respondent.
TOM, J.P., MAZZARELLI, RICHTER, MANZANET–DANIELS, WEBBER, JJ.
Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered March 25, 2015, 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.
Defendant's prior felony sex crime conviction automatically resulted in an override to risk level three (see People v. Howard, 27 N.Y.3d 337, 342, 33 N.Y.S.3d 132, 52 N.E.3d 1158 [2016] ). Accordingly, defendant qualifies as a level three offender independently of any point assessments. In any event, defendant's challenges to particular point assessments are unavailing. The court properly exercised its discretion when it declined to grant a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). There were no mitigating factors that were not adequately taken into account by the guidelines, and the record does not establish any basis for a downward departure. Although defendant will be subject to a lengthy period of postrelease supervision, we do not find that circumstance to be a significant mitigating factor, particularly because defendant committed the underlying crime while he was on parole from his prior sex crime conviction.
Although defendant challenges the adequacy of the court's findings, we conclude that a remand is unnecessary since the record is sufficient for this Court to make its own findings (see People v. Lacewell, 103 A.D.3d 784, 785, 962 N.Y.S.2d 193 [2d Dept.2013], lv. denied 21 N.Y.3d 856, 968 N.Y.S.2d 1, 990 N.E.2d 135 [2013] ), especially because, as noted, the override supports a level three adjudication irrespectively of any point assessments.