People v Agnew

People v Agnew 2009 NY Slip Op 09281 [68 AD3d 526] December 15, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

The People of the State of New York, Respondent,
v
Gerald Agnew, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Arthur H. Hopkirk of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (John B.F. Martin of counsel), for respondent.

Order, Supreme Court, New York County (Ronald A. Zweibel, J.), entered on or about January 12, 2009, which adjudicated defendant a level three sex 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 denied defendant's request for a downward departure (see People v Judd, 29 AD3d 431 [2006], lv denied 7 NY3d 709 [2006]). There is no support for defendant's position that the override was not intended to apply when one of the felonies involved an undercover operation, rather than an actual underage victim. Defendant's conduct demonstrated a high risk of sexual recidivism, not lessened by the fact that the crime was only an attempt, or the fact that the intended victim, believed by defendant to be a child, was actually an undercover officer. Concur—Gonzalez, P.J., Moskowitz, DeGrasse, Manzanet-Daniels and Roman, JJ.