People v Johnson

People v Johnson 2007 NY Slip Op 08109 [44 AD3d 571] October 30, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 12, 2007

The People of the State of New York, Respondent,
v
Arthur Johnson, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York City (Elizabeth B. Emmons of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Eric Rosen of counsel), for respondent.

Order, Supreme Court, New York County (Daniel P. FitzGerald, J.), entered on or about June 14, 2005, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly invoked the presumptive override for a recent threat to reoffend by committing a sexual or violent crime. The 59-year-old defendant, who has been incarcerated for approximately 35 years, was released on parole briefly in 1985, upon which he almost immediately committed a new and very serious sex crime. To the extent that defendant is arguing that the override does not apply to his situation, that argument is waived, and without merit in any event. The court's determination that the defendant was a level three risk, based upon the presumptive recent threat override, was supported by clear and convincing evidence, and neither defendant's age nor the likelihood of his continued incarceration warranted a downward departure (see e.g. People v Cadorette, 41 AD3d 808 [2007]). Concur—Lippman, P.J., Andrias, Williams, Buckley and Kavanagh, JJ.