People v Faulkner

People v Faulkner 2017 NY Slip Op 05051 Decided on June 20, 2017 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 June 20, 2017
Friedman, J.P., Renwick, Manzanet-Daniels, Kapnick, Gesmer, JJ.
4318 1489/12

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

v

William Faulkner, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Lauren J. Springer of counsel), for appellant.

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

Order, Supreme Court, New York County (Daniel P. FitzGerald, J.), entered on or about September 25, 2015, which adjudicated defendant a level three sexually violent predicate offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly assessed 20 points under risk factor 13 for unsatisfactory conduct while confined, based on an incident where he sexually harassed a nurse (see People v Birch, 99 AD3d 422 [1st Dept 2012], lv denied 20 NY3d 854 [2012]). In any event, without those points, defendant would remain a level three offender because of both his point score and the presumptive override for a prior felony sex crime conviction, and there is no basis for a downward departure. The mitigating factors cited by defendant are outweighed by the seriousness of the underlying offense (see People v Gillotti, 23 NY3d 841 [2014]).

The court properly designated defendant a sexually violent offender because he was convicted of an enumerated offense, and it lacked discretion to do otherwise (see People v Bullock, 125 AD3d 1 [1st Dept 2014], lv denied 24 NY3d 915 [2015]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 20, 2017

CLERK