The People of the State of New York, Respondent, v. Joseph Smalls, Appellant

The People of the State of New York, Respondent, v Joseph Smalls, Appellant. [992 NYS2d 880] [MAJORITY] Order, Supreme Court, New York County (Cassandra M. Mullen, J.), entered on or about April 2, 2012, which adjudicated defendant a level three sexually violent offender under the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs. The court properly applied the presumptive override for a prior felony sex crime conviction, and properly exercised its discretion in denying a downward departure. The underlying offense is defendant’s third felony sex crime conviction. Defendant committed the underlying crime after having already been adjudicated a level three sex offender (see People v Carter, 114 AD3d 592 [1st Dept 2014]). The mitigating factors cited by defendant were outweighed by his criminal record, which demonstrates a dangerous propensity to commit sex crimes (see e.g. People v Jamison, 107 AD3d 531 [1st Dept 2013], lv denied 22 NY3d 852 [2013]; People v Poole, 105 AD3d 654 [1st Dept 2013], lv denied 21 NY3d 863 [2013]), and also by his failure to advance to the second level of the sex offender treatment program. Concur — Mazzarelli, J.P., Andrias, Moskowitz, ManzanetDaniels and Clark, JJ.