PEOPLE v. WILLIAMS (2025)

Order of the Appellate Term of the Supreme Court, First Department, entered on March 19, 2024, which affirmed an order of the Criminal Court of the City of New York, New York County (Kathryn S. Paek, J.), entered on or about August 3, 2017, adjudicating defendant a level three predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

As the Appellate Term concluded, the hearing court properly applied the presumptive override for a prior felony sex crime conviction.  Defendant's felony conviction in Nebraska for sexual assault on a child in the third degree in 2008 and his consequent registration as a sexual offender in that state automatically resulted in an override to risk level three (see Correction Law § 168–a[2][d][ii];  People v. Kennedy, 7 N.Y.3d 87, 91, 817 N.Y.S.2d 614, 850 N.E.2d 661 [2006];  People v. Hoyos–Sanchez, 147 A.D.3d 701, 702, 48 N.Y.S.3d 138 [1st Dept. 2017], lv denied 29 N.Y.3d 912, 2017 WL 2467922 [2017];  People v. Porrata, 62 Misc.3d 138[A], 2019 N.Y. Slip Op. 50033[U], 2019 WL 237933 [App. Term, 1st Dept. 2019]).

Furthermore, the hearing court providently exercised its discretion when it declined to grant a downward departure (see generally People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  The risk assessment instrument adequately took into account mitigating factors cited by defendant.  Even considering such mitigating factors, including the fact that the instant sex offense in New York was a misdemeanor, defendant's criminal history, which includes the sex felony conviction in Nebraska and failures to comply with registration requirements, supports the court's determination (see People v. Dworkowitz, 170 A.D.3d 512, 513, 93 N.Y.S.3d 850 [1st Dept. 2019], lv denied 33 N.Y.3d 910, 2019 WL 2622745 [2019]).