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People v. Broadus

142 A.D.3d 595 Court N.Y. App. Div. Decision date 2016-08-17 English

Judges Rivera, J.R, Leventhal, Hinds-Radix and Brathwaite Nelson, JJ., concur.

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p. 595
The People of the State of New York, Respondent, v Danny Broadus, Appellant.
[36 NYS3d 601]

— Appeal by the defendant from an order of the Supreme Court, Kings County (Foley, J.), dated April 4, 2013, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

The People established, by clear and convincing evidence, that the defendant had previously been convicted of a felony sex crime prior to the subject conviction (see Correction Law § 168-n [3]; People v Cummings, 134 AD3d 686 [2015]). Therefore, the defendant was presumptively a level three sex offender pursuant to an automatic override addressing prior felony convictions for sex crimes (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3-4 [2006]; People v Johnson, 135 AD3d 720 [2016]; People v Cummings, 134 AD3d at 686-687 ).

At the hearing held pursuant to the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]), defense counsel asked the court “not to apply that presumptive override,” in light of the “remoteness in time of that [prior felony sex] crime.” However, once the People have sustained their burden of proving the applicability of an override, “a

p. 596
SORA court is not possessed of any discretion in determining whether to apply [an] override; the application of the override is automatic” (People v Gordon, 133 AD3d 835 , 836 [2015]; see People v Johnson, 135 AD3d at 720-721 ).

While a court may nevertheless depart from the presumptive risk level where the circumstances warrant such a departure (see People v Johnson, 135 AD3d at 721 ), here, the defendant failed to request a downward departure and thus, his contention that the Supreme Court should have granted a downward departure is unpreserved for appellate review (see People v Gillotti, 23 NY3d 841 , 861 n 5 [2014]; People v Johnson, 11 NY3d 416 , 421-422 [2008]; People v Rodriguez, 136 AD3d 880 [2016]). In any event, that contention is without merit (see People v Gillotti, 23 NY3d at 861 ; People v Wyatt, 89 AD3d 112 , 128 [2011]). Accordingly, the court properly designated him a level three sex offender.

In light of our determination, we need not address the defendant’s remaining contention.

Rivera, J.R, Leventhal, Hinds-Radix and Brathwaite Nelson, JJ., concur.

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