The People of the State of New York, Respondent, v. Wesley Carter, Defendant–Appellant.

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

The People of the State of New York, Respondent, v. Wesley Carter, Defendant–Appellant.

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Decided: February 25, 2014

Sweeny, J.P., Andrias, Moskowitz, DeGrasse, Gische, JJ. Richard M. Greenberg, Office of The Appellate Defender, New York (Rebekah J. Pazmiño of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Manu K. Balachandran of counsel), for respondent.

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Order, Supreme Court, New York County (Gregory Carro, J.), entered on or about November 18, 2011, which adjudicated defendant a level three sexually violent predicate sex offender under 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 properly exercised its discretion in denying a downward departure.   The underlying offense is defendant's third felony sex crime conviction.   Defendant committed the underlying crime after having already been adjudicated a level three sex offender for a crime committed against young children.   Furthermore, defendant has also been convicted of a misdemeanor sex offense.   The mitigating factors cited by defendant, including his relatively low point score on the risk assessment instrument and his efforts at rehabilitation, are outweighed by defendant's record, which demonstrates a dangerous propensity to commit sex crimes (see e. g. People v. Jamison, 107 AD3d 531 [1st Dept 2013], lv denied 22 NY3d 852 [2013] ).  People v. Poole, 105 AD3d 654 [1st Dept 2013], lv denied 21 NY3d 863 [2013] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK