PEOPLE v. ERVING (2015)

The PEOPLE of the State of New York, Respondent, v. Matthew ERVING, Defendant–Appellant.

Decided: January 13, 2015

TOM, J.P., FRIEDMAN, ACOSTA, SAXE, KAPNICK, JJ.

Scott A. Rosenberg, The Legal Aid Society, New York (Denise Fabiano of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (David M. Cohn of counsel), for respondent.

Order, Supreme Court, New York County (Charles H. Solomon, J.), entered on or about January 14, 2011, which adjudicated defendant a level three sexually violent predicate 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 defendant's completion of a sex offender treatment program while in prison and his relatively minor disciplinary history while incarcerated did not warrant a downward departure. In addition to the underlying sex crime conviction, defendant had two prior felony sex convictions, and all three cases involved similar violent behavior, demonstrating a serious threat of recidivism (see e. g. People v. Torres, 90 AD3d 442 [1st Dept 2011], lv denied 18 NY3d 809 [2012] ).

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