People v Simmons

People v Simmons 2015 NY Slip Op 04240 Decided on May 19, 2015 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 May 19, 2015
Sweeny, J.P., Renwick, Andrias, Moskowitz, Gische, JJ.
15148 727/86

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

v

William Simmons, Defendant-Appellant.

Steven Banks, The Legal Aid Society, New York (Lorraine Maddalo of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Alice Wiseman of counsel), for respondent.

Order, Supreme Court, New York County (Edward J. McLaughlin, J.), entered on or about June 24, 2011, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Defendant's challenges to his adjudication are unpreserved, and we decline to review them in the interest of justice. In any event, we find that the court properly applied the presumptive override for causing the death of a victim, "which results in a level three adjudication independent of any point assessments" (People v Rivera, 123 AD3d 639, 639 [1st Dept 2014]), that there is no basis for a downward departure, and that the court properly exercised its discretion in declining to rule on matters it considered academic (see People v Pedraja, 49 AD3d 325 [1st Dept 2008], lv denied 10 NY3d 711 [2008]). Moreover, even if, as defendant contends, his correct point score is only 70, we would still find no basis for a modification of the adjudication.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 19, 2015

CLERK