PEOPLE v. MCKENZIE (2024)

Order, Supreme Court, New York County (Robert M. Stolz, J.), entered on or about July 16, 2019, 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.

Defendant's prior felony sex crime convictions automatically resulted in an override to risk level three.  The only material issue is whether defendant should be granted a downward departure to risk level two.  We find that the court providently exercised its discretion when it declined to grant a downward departure, as there were no mitigating factors that were not adequately accounted for by the guidelines or outweighed by aggravating factors (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  Defendant failed to establish that his response to sex offender treatment was so exceptional as to warrant a downward departure (see People v. Tugwell, 210 A.D.3d 507, 176 N.Y.S.3d 490 [1st Dept. 2022], lv denied 39 N.Y.3d 911, 2023 WL 3066592 [2023]), and his argument that the type of misconduct the record establishes that he has habitually engaged in is not grave enough to warrant a level three designation has been rejected by this Court (see People v. Lacy, 185 A.D.3d 416, 417, 124 N.Y.S.3d 787 [1st Dept. 2020], lv denied 35 N.Y.3d 916, 2020 WL 6189193 [2020];  People v. Doctor, 108 A.D.3d 413, 968 N.Y.S.2d 81 [1st Dept. 2013], lv denied 21 N.Y.3d 866, 2013 WL 5180414 [2013]).  Finally, contrary to defendant's contention, there is no overassessment of the risk of re-offense by “double counting” where points are scored for prior criminal history with respect to a defendant who was designated a risk level three based on the automatic override for offenders with prior felony sex crime convictions and not the point scoring (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 3–4).