People v. Faulkner

151 A.D.3d 601

55 N.Y.S.3d 249

The PEOPLE of the State of New York, Respondent,

v.William FAULKNER, Defendant–Appellant.

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

June 20, 2017.

Robert S. Dean, Center for Appellate Litigation, New York (Lauren J. Springer of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Christine DiDomenico of counsel), for respondent.

FRIEDMAN, J.P., RENWICK, MANZANET–DANIELS, KAPNICK, GESMER, JJ.

Order, Supreme Court, New York County (Daniel P. FitzGerald, J.), entered on or about September 25, 2015, which adjudicated defendant a level three sexually violent predicate offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The court properly assessed 20 points under risk factor 13 for unsatisfactory conduct while confined, based on an incident where he sexually harassed a nurse (see People v. Birch, 99 A.D.3d 422, 952 N.Y.S.2d 10 [1st Dept.2012], lv. denied 20 N.Y.3d 854, 2012 WL 6580162 [2012] ). In any event, without those points, defendant would remain a level three offender because of both his point score and the presumptive override for a prior felony sex crime conviction, and there is no basis for a downward departure. The mitigating factors cited by defendant are outweighed by the seriousness of the underlying offense (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ).

The court properly designated defendant a sexually violent offender because he was convicted of an enumerated offense, and it lacked discretion to do...