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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Martin JUDD, Defendant-Appellant.

Decided: May 18, 2006

TOM, J.P., SAXE, NARDELLI, GONZALEZ, CATTERSON, JJ. Laura R. Johnson, The Legal Aid Society, New York (Laura Lieberman Cohen of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Nicole Beder of counsel), for respondent.

Order, Supreme Court, New York County (Ruth Levine Sussman, J.), entered on or about April 12, 2005, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The record supports the court's independent finding, following a recommendation by the Board of Examiners of Sex Offenders, that defendant should be designated a level three sex offender, based on his prior felony sex crime conviction, which is a presumptive overriding factor under the Board's guidelines (see People v. Scott, 288 A.D.2d 763, 733 N.Y.S.2d 744 [2001] ).   Defendant's 1985 and 1992 felony convictions both involved sex crimes against children.   The danger of future recidivism evinced by this past recidivism outweighs the various mitigating factors argued by defendant, such as the absence of recent criminal activity, and the court properly concluded that defendant's present circumstances did not warrant a downward departure from his presumptive risk level (see People v. Guaman, 8 A.D.3d 545, 778 N.Y.S.2d 704 [2004] ).