People v. Lebron (143 A.D.3d 535, 2016)

Order, Supreme Court, New York County (Bonnie G. Wittner, J.), entered on or about April 9, 2013, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Regardless of whether defendant’s correct point score would make him a presumptive level two offender, his prior felony sex crime conviction automatically resulted in an override to level three (see People v Howard, 27 NY3d 337, 342 [2016]), and the court properly exercised its discretion when it declined to grant a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). Notwithstanding the mitigating factors defendant cites, his two sex crime convictions involved similar conduct that was violent and predatory, and thereby demonstrated a serious threat of recidivism (see e.g. People v Torres, 90 AD3d 442 [1st Dept 2011], lv denied 18 NY3d 809 [2012]). In any event, we also find that the court properly assessed 15 points under the risk factor for drug or alcohol abuse, so that defendant qualifies as a level three offender based on his point score as well.

Concur — Tom, J.P., Renwick, Manzanet-Daniels, Gische and Webber, JJ.