People v Powell

People v Powell 2019 NY Slip Op 01519 Decided on March 5, 2019 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 March 5, 2019
Acosta, P.J., Richter, Manzanet-Daniels, Tom, Moulton, JJ.
8577 2567/10

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

v

William Powell, Defendant-Appellant.



Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Nicole Neckles of counsel), for respondent.

Order, Supreme Court, Bronx County (John S. Moore, J.), entered on or about December 8, 2016, which adjudicated defendant a level three sexually violent predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court providently exercised its discretion in declining to grant an indefinite adjournment, based on the pendency of an article 10 civil commitment proceeding, of defendant's sex offender classification hearing (see People v Blum, 166 AD3d 571 [1st Dept 2018]). 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]); moreover, he had been already been designated a level three sexually violent offender on the prior conviction. The only material issue was whether the court should grant a downward departure despite the override. "Under the circumstances, the possibility that the court would be in a better position to decide the risk assessment issue at the end of defendant's civil commitment, if any, is speculative" (Blum, 166 AD3d at 571). In any event, "defendant has the statutory right to seek a modification of his SORA risk level designation in the future" (People v Gordon, 147 AD3d 988, 988 [2d Dept 2017], lv denied 29 NY3d 910 [2017].

We have considered and rejected defendant's remaining claims.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 5, 2019

CLERK