Opinion
08-17-2016
PEOPLE of State of New York, respondent, v. Danny BROADUS, appellant.
Seymour W. James, Jr., New York, N.Y. (Richard Joselson of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Richard Joselson of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.
Opinion
Appeal by the defendant from an order of the Supreme Court, Kings County (Foley, J.), dated April 4, 2013, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
The People established, by clear and convincing evidence, that the defendant had previously been convicted of a felony sex crime prior to the subject conviction (see Correction Law § 168–n[3] ; People v. Cummings, 134 A.D.3d 686, 19 N.Y.S.3d 772 ). Therefore, the defendant was presumptively a level three sex offender pursuant to an automatic override addressing prior felony convictions for sex crimes (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3–4 [2006]; People v. Johnson, 135 A.D.3d 720, 22 N.Y.S.3d 238 ; People v. Cummings, 134 A.D.3d at 686–687, 19 N.Y.S.3d 772).
At the hearing held pursuant to the Sex Offender Registration Act (see Correction Law article 6–C; hereinafter SORA), defense counsel asked the court “not to apply that presumptive override,” in light of the “remoteness in time of that [prior felony sex] crime.” However, once the People have sustained their burden of proving the applicability of an override, “a SORA court is not possessed of any discretion in determining whether to apply [an] override; the application of the override is automatic” (People v. Gordon, 133 A.D.3d 835, 836, 20 N.Y.S.3d 165 ; see People v. Johnson, 135 A.D.3d at 720–721, 22 N.Y.S.3d 238).
While a court may nevertheless depart from the presumptive risk level where the circumstances warrant such a departure (see People v. Johnson, 135 A.D.3d at 721, 22 N.Y.S.3d 238), here, the defendant failed to request a downward departure and thus, his contention that the Supreme Court should have granted a downward departure is unpreserved for appellate review (see People v. Gillotti, 23 N.Y.3d 841, 861 n. 5, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Johnson, 11 N.Y.3d 416, 421–422, 872 N.Y.S.2d 379, 900 N.E.2d 930 ; People v. Rodriguez, 136 A.D.3d 880, 24 N.Y.S.3d 914 ). In any event, that contention is without merit (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85 ). Accordingly, the court properly designated him a level three sex offender.
In light of our determination, we need not address the defendant's remaining contention.
RIVERA, J.P., LEVENTHAL, HINDS–RADIX and BRATHWAITE NELSON, JJ., concur.