Opinion
10-13-2016
The PEOPLE of the State of New York, Respondent, v. Richard LEBRON, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Steven Banks of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Steven Banks of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), for respondent.
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 N.Y.3d 337, 342, 33 N.Y.S.3d 132, 52 N.E.3d 1158 [2016] ), and 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] ). 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 A.D.3d 442, 933 N.Y.S.2d 861 [1st Dept.2011], lv. denied 18 N.Y.3d 809, 2012 WL 996935 [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.
TOM, J.P., RENWICK, MANZANET–DANIELS, GISCHE, WEBBER, JJ., concur.