People v Smalls

People v Smalls 2018 NY Slip Op 06321 Decided on September 27, 2018 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 September 27, 2018
Renwick, J.P., Gische, Mazzarelli, Kern, Moulton, JJ.
7165 2298/12

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

v

Matthew Smalls, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Adrienne M. Gantt of counsel), for appellant.

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

Order, Supreme Court, New York County (Gregory Carro, J.), entered on or about September 14, 2016, which adjudicated defendant a level three predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Defendant's challenges to point assessments that were based on a prior youthful offender adjudication are unavailing in light of People v Francis (30 NY3d 737 [2018]). The court also correctly assessed points for a history of drug abuse, based on defendant's admissions and criminal history (see e.g. People v Fernandez, 126 AD3d 453 [1st Dept 2015], lv denied 25 NY3d 911 [2015]).

We find no basis for a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). The mitigating factors cited by defendant are outweighed by the seriousness of the underlying crime, and we do not find that there were any overassessments.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 27, 2018

CLERK