People v. Cox

Appeal by the defendant from an order of the Supreme Court, Kings County (Michael J. Brennan, J.), dated September 23, 2015, 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 Supreme Court properly determined that the defendant was presumptively a level three sex offender as a result of the automatic override resulting from his two prior felony convictions for sex crimes (see People v Locklear, 154 AD3d 888 , 889 [2017]; People v Fessel, 149 AD3d 1113 , 1114 [2017]).

The Supreme Court also providently exercised its discretion in denying the defendant’s application, in effect, for a downward departure from his presumptive risk level designation. To the extent that the defendant contends that he was entitled to a downward departure as a result of his unblemished prison disciplinary record, his contention is unpreserved for appellate review, as he did not rely on this factor before the Supreme Court (see People v Cosby, 154 AD3d 789 , 790 [2017]; People v Jara, 150 AD3d 1159 [2017]). In any event, even assuming that the factors identified by the defendant constituted mitigating circumstances not adequately taken into account by the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary (2006), the totality of the circumstances did not warrant a departure to avoid an over-assessment of the defendant’s dangerousness and risk of sexual recidivism (see People v Gillotti, 23 NY3d 841 , 861 [2014]; People v Goldman, 150 AD3d 905 , 906-907 [2017]).

Hall, J.P, Austin, Sgroi and Christopher, JJ., concur.