People v Lewis

People v Lewis 2016 NY Slip Op 06957 Decided on October 25, 2016 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 October 25, 2016
Tom, J.P., Mazzarelli, Richter, Manzanet-Daniels, Webber, JJ.
2011 2464/12

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

v

Michael Lewis, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Bonnie C. Brennan of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Robert C. Mciver of counsel), for respondent.

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered March 25, 2015, 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 prior felony sex crime conviction automatically resulted in an override to risk level three (see People v Howard, 27 NY3d 337, 342 [2016]). Accordingly, defendant qualifies as a level three offender independently of any point assessments. In any event, defendant's challenges to particular point assessments are unavailing. The court properly exercised its discretion when it declined to grant a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). There were no mitigating factors that were not adequately taken into account by the guidelines, and the record does not establish any basis for a downward departure. Although defendant will be subject to a lengthy period of postrelease supervision, we do not find that circumstance to be a significant mitigating factor, particularly because defendant committed the underlying crime while he was on parole from his prior sex crime conviction.

Although defendant challenges the adequacy of the court's findings, we conclude that a remand is unnecessary since the record is sufficient for this Court to make its own findings (see People v Lacewell, 103 AD3d 784, 785 [2d Dept 2013], lv denied 21 NY3d 856 [2013]), especially because, as noted, the override supports a level three adjudication irrespectively of any point assessments.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 25, 2016

CLERK