PEOPLE v. BIRRIEL (2013)

The PEOPLE of the State of New York, Respondent, v. Angel BIRRIEL, Defendant–Appellant.

Decided: October 10, 2013

TOM, J.P., SWEENY, SAXE, FREEDMAN, CLARK, JJ.

Steven Banks, The Legal Aid Society, New York (Michael C. Taglieri of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Naomi C. Reed of counsel), for respondent.

Order, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), entered on or about December 5, 2011, which adjudicated defendant a level three sexually violent predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The court correctly applied the presumptive override for a prior felony sex crime conviction. At the hearing, defendant did not establish that he was being released to a secure psychiatric facility. In any event, he has still not established that the nature of his psychiatric placement is a mitigating factor, not adequately taken into account by the risk assessment instrument, that would warrant any type of downward departure (see e.g. People v. James, 103 AD3d 588 [1st Dept 2013], lv denied 21 NY3d 856 [2013] ).

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