People v Smalls (2014 NY Slip Op 06531)
People v Smalls
2014 NY Slip Op 06531
Decided on September 30, 2014
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 30, 2014Mazzarelli, J.P., Andrias, Moskowitz, Manzanet-Daniels, Clark, JJ.


13044 1169/10

[*1] The People of the State of New York, Respondent, —
vJoseph Smalls, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Allen J. Vickey of counsel), for respondent.
Order, Supreme Court, New York County (Cassandra M. Mullen, J.), entered on or about April 2, 2012, which adjudicated defendant a level three sexually violent offender under the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
The court properly applied the presumptive override for a prior felony sex crime conviction, and properly exercised its discretion in denying a downward departure. The underlying offense is defendant's third felony sex crime conviction. Defendant committed the underlying crime after having already been adjudicated a level three sex offender (see People v Carter, 114 AD3d 592 [1st Dept 2014]). The mitigating factors cited by defendant were outweighed by his criminal record, which demonstrates a dangerous propensity to commit sex crimes (see e.g. People v Jamison, 107 AD3d 531 [1st Dept 2013], lv denied  22 NY3d 852 [2013]; People v Poole, 105 AD3d 654 [1st Dept 2013],lv denied 21 NY3d 863 [2013]), and also by his failure to advance to the second level of the sex offender treatment program.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: SEPTEMBER 30, 2014
CLERK


