People v Cox, 2018 NY Slip Op 00575 [157 AD3d 974]
January 31, 2018
Appellate Division, Second Department
[*1]
The People of the State of New York, Respondent,
v
Gary Cox, Appellant.
Paul Skip Laisure, New York, NY (Samuel Brown of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel; Walker Halstad on the brief), for respondent.
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 defendant appeals from his designation as a level three sex offender pursuant to the Sex Offender Registration Act ( see Correction Law art 6-C [hereinafter SORA]).
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..