

People v McFarland (2016 NY Slip Op 02743)





People v McFarland


2016 NY Slip Op 02743


Decided on April 12, 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 April 12, 2016

Friedman, J.P., Sweeny, Saxe, Richter, Kahn, JJ.


789 5329/02

[*1]The People of the State of New York, Respondent,
vElias McFarland, Defendant-Appellant.


Seymour W. James, Jr., The Legal Aid Society, New York (Lorca Morello of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Nicole Coviello of counsel), for respondent.

Order, Supreme Court, New York County (Daniel P. Conviser, J.), entered June 8, 2010, which adjudicated defendant a level three sexually violent offender pursuant to 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 override, which results in a level three adjudication that is independent of the factors set forth in the risk assessment instrument, was supported by reliable documentation that defendant has twice been convicted of rape in Virginia. We have considered and rejected defendant's remaining arguments, most of which are generally similar to arguments this Court rejected on a prior appeal in this case (120 AD3d 1121 [1st Dept 2014], lv denied 24 NY3d 1053 [2014]), or in People v Ferrer (69 AD3d 513 [1st Dept 2010], lv denied 14 NY3d 709 [2010]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 12, 2016
CLERK


