Opinion
No. 570552/17
03-19-2024
The People of the State of New York, Respondent, v. Dawayne Williams, Defendant-Appellant.
Unpublished Opinion
Defendant appeals from an order of the Criminal Court of the City of New York, New York County (Kate Paek, J.), entered August 3, 2017, which, after a hearing, designated him a level three sex offender pursuant to the Sex Offender Registration Act.
PRESENT: Tisch, J.P., James, Perez, JJ.
PER CURIAM
Order (Kate Paek, J.), entered August 3, 2017, affirmed.
Defendant's 2008 Nebraska felony conviction of third degree sexual assault on a child, which required him to register as a sex offender in that State, automatically resulted in an override to risk level three (see Correction Law § 168-a[2][d][ii]; Matter of North v Board of Examiners of Sex Offenders of State of NY, 8 N.Y.3d 745, 748-749 [2007]; People v Mann, 52 A.D.3d 884, 885 [2008]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, risk factor 9 [2006]). Accordingly, defendant qualifies as a level three offender independently of any point assessments (see People v Fair, 129 A.D.3d 617, 617 [2015], lv denied 26 N.Y.3d 910 [2015]).
The court properly exercised its discretion when it declined to grant a downward departure (see generally People v Howard, 27 N.Y.3d 337, 339 [2016]; People v Gillotti, 23 N.Y.3d 841 [2014]). The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument, or were outweighed by defendant's criminal history, which includes, among other things, two convictions for failing to comply with sex offender registration requirements (see People v Dworkowitz, 170 A.D.3d 512, 513 [2019], lv denied 33 N.Y.3d 910 [2019] ; People v Rodriguez, 122 A.D.3d 538 [2014], lv denied 24 N.Y.3d 1221 [2015]; People v Bright, 104 A.D.3d 478 [2013]), "a fact which may be an aggravating factor in terms of a risk of reoffense" (People v Reid, 141 A.D.3d 156, 160 [2016], lv denied 28 N.Y.3d 901 [2016]).