People v Pizarro, 2017 NY Slip Op 07534 [154 AD3d 607]

October 26, 2017

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Julio Pizarro, Appellant.

The Legal Aid Society, New York (Seymour W. James, Jr. of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Shannon Henderson of counsel), for respondent.

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about September 24, 2014, 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.

Although defendant casts his argument for a modification of his risk level in terms of whether the override for a prior felony sex crime conviction should be “applied,” the override applies automatically, except that the court may grant a downward departure ( see People v Howard , 27 NY3d 337 , 342 [2016]). In any event, there is no basis for a downward departure ( see People v Gillotti , 23 NY3d 841 [2014]), because there are no mitigating factors that were not adequately taken into account by the risk assessment instrument or outweighed by the seriousness of defendant’s current and prior sex offenses against children. Concur—Tom, J.P., Manzanet-Daniels, Mazzarelli, Oing and Singh, JJ..