Opinion
No. 570745/12.
01-13-2017
The PEOPLE of the State of New York, Respondent, v. Alexander ROSARIO, Defendant–Appellant.
Order (Jennifer G. Schecter, J.), entered October 3, 2011, affirmed.
The record supports the level three sex offender adjudication. Defendant is subject to the presumptive override for a prior felony sex crime conviction, which results in a level three offender adjudication independent of any point assessment (see People v. Fair, 129 AD3d 617 [2015], lv denied 26 NY3d 910 [2015] ; People v. Judd, 29 AD3d 431 [2006], lv denied 7 NY3d 709 [2006] ). Defendant's age, 67 years at the time of the hearing, does not warrant a downward departure, given that defendant committed his most recent sex offense at the age of 66 and his prior felony sex crime at age 60 (see People v. McFarland, 120 AD3d 1121, 1122 [2014], lv denied 24 NY3d 1053 [2014] ; People v. Beyah, 76 AD3d 917 [2010], lv denied 15 NY3d 716 [2010] ). The impact that defendant's level three designation had on his placement in a treatment program had no bearing on defendant's risk of a repeat offense or the threat he posed to the public safety (see Correction Law § 168–l[5] ; People v. McFarland, 120 AD3d at 1122 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur.