People v Torres

People v Torres 2011 NY Slip Op 08809 Decided on December 6, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 6, 2011
Mazzarelli, J.P., Friedman, Catterson, Renwick, DeGrasse, JJ.
6235 45/00

[*1]The People of the State of New York, Respondent,

v

Auero Torres, Defendant-Appellant.




Steven Banks, The Legal Aid Society, New York (Lorraine
Maddalo of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sean T.
Masson of counsel), for respondent.

Order, Supreme Court, New York County (Charles H. Solomon, J.), entered on or about December 1, 2009, which adjudicated defendant a level three sex offender under the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

We find that regardless of whether defendant's correct point score would make him a presumptive level two offender, this case clearly warrants application of the presumptive override for a prior felony sex crime conviction, and it does not warrant a downward departure. The prior and present convictions involved violent, predatory conduct, and the two incidents were remarkably similar. This demonstrated a serious threat of recidivism (see e.g. People v Reid, 49 AD3d 338, 339 [2008], lv denied 10 NY3d 713 [2008]), notwithstanding the passage of time between the two incidents.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 6, 2011

CLERK