Opinion
13029-13030 Ind. Nos. 99014/16 99062/16 Case Nos. 2018-2230 2018-2231
02-04-2021
The PEOPLE of the State of New York, Respondent, v. Randolph W. SMALLS, Jr., Defendant–Appellant.
Janet E. Sabel, The Legal Aid Society, New York (Robin Richardson of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Ryan J. Foley of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Robin Richardson of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Ryan J. Foley of counsel), for respondent.
Kapnick, J.P., Mazzarelli, Moulton, Shulman, JJ.
Orders, Supreme Court, Bronx County ( Efrain Alvarado, J.), entered on or about February 6, 2018, which adjudicated defendant a level two sex offender and level three predicate sex offender sex offender, respectively, on two cases, pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.
The court adjudicated defendant a level two offender, based on a 1998 conviction, and also adjudicated him a level three predicate sex offender, based on a 2003 conviction. To the extent defendant challenges any point assessments regarding the 2003 case, we find these challenges unavailing. In any event, regardless of defendant's correct point score, his prior felony sex crime conviction in the 1998 case automatically resulted in an override to level three in the 2003 case (see People v. Howard, 27 N.Y.3d 337, 342, 33 N.Y.S.3d 132, 52 N.E.3d 1158 [2016] ). We find no basis for a downward departure of any kind on either case (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). The mitigating factors cited by defendant are outweighed by the risk of recidivism that defendant has demonstrated by way of his repeated, serious sex crimes.