The People of the State of New York, Respondent, v. Theodore Dalton, Defendant–Appellant.  Ind. No. (2021)

Case No.2019–5493

Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Shane Magnetti of counsel), for respondent.

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about June 28, 2019, which adjudicated defendant a level three predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The court properly exercised its discretion when it declined to grant a downward departure (see People v. Gillotti, 23 NY3d 841 [2014] ).  The mitigating factors defendant cites were adequately taken into account by the guidelines or are outweighed by defendant's criminal history of three sex offenses, two of which were felonies, and the fact that he committed the underlying offense after having twice been adjudicated a level

three offender.  The application of the presumptive override for a prior sex offense does not overassess defendant's risk of reoffense.