

People v Colon (2016 NY Slip Op 00892)





People v Colon


2016 NY Slip Op 00892


Decided on February 9, 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 February 9, 2016

Friedman, J.P., Acosta, Andrias, Saxe, Feinman, JJ.


662/12 166A 166

[*1]The People of the State of New York, Respondent,
vMichael Colon, Defendant-Appellant.


Robert S. Dean, Center for Appellate Litigation, New York (Sharmeen Mazumder of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Melanie A. Sarver of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Troy K. Webber, J.), rendered May 30, 2014, convicting defendant, upon his plea of guilty, of rape in the third degree and criminal sexual act in the third degree, and sentencing him to an aggregate term of 3 years, with 10 years' postrelease supervision, unanimously affirmed. Order, same court and Justice entered on or about July 22, 2014, 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.
As to the appeal from the judgment of conviction, we find that defendant did not make a valid waiver of his right to appeal, but we perceive no basis for reducing the period of postrelease supervision.
As to defendant's civil appeal from his sex offender adjudication, the record supports the court's determination that defendant is subject to the presumptive override for a prior felony sex crime conviction, which results in a level three adjudication independent of any point assessments. The court properly exercised its discretion when it declined to grant a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). The mitigating factors cited by defendant were outweighed by the seriousness of defendant's underlying crimes and the recency of the prior felony sex crime.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 9, 2016
CLERK


