Opinion
2014-09-30
The PEOPLE of the State of New York, Respondent, v. Joseph SMALLS, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Allen J. Vickey of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Allen J. Vickey of counsel), for respondent.
Order, Supreme Court, New York County (Cassandra M. Mullen, J.), entered on or about April 2, 2012, which adjudicated defendant a level three sexually violent offender under the Sex Offender Registration Act (Correction Law art. 6–C), unanimously affirmed, without costs.
The court properly applied the presumptive override for a prior felony sex crime conviction, and properly exercised its discretion in denying a downward departure. The underlying offense is defendant's third felony sex crime conviction. Defendant committed the underlying crime after having already been adjudicated a level three sex offender ( see People v. Carter, 114 A.D.3d 592, 980 N.Y.S.2d 465 [1st Dept.2014] ). The mitigating factors cited by defendant were outweighed by his criminal record, which demonstrates a dangerous propensity to commit sex crimes ( see e.g. People v. Jamison, 107 A.D.3d 531, 966 N.Y.S.2d 778 [1st Dept.2013], lv. denied22 N.Y.3d 852, 2013 WL 5567921 [2013]; People v. Poole, 105 A.D.3d 654, 963 N.Y.S.2d 259 [1st Dept.2013], lv. denied21 N.Y.3d 863, 2013 WL 4516326 [2013] ), and also by his failure to advance to the second level of the sex offender treatment program. MAZZARELLI, J.P., ANDRIAS, MOSKOWITZ, MANZANET–DANIELS, CLARK, JJ., concur.