| People v Agnew |
| 2009 NY Slip Op 09281 [68 AD3d 526] |
| December 15, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Gerald Agnew, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (John B.F. Martin of counsel), forrespondent.
Order, Supreme Court, New York County (Ronald A. Zweibel, J.), entered on or aboutJanuary 12, 2009, which adjudicated defendant a level three sex offender under the Sex OffenderRegistration 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 denied defendant's request for a downward departure (see People v Judd, 29 AD3d 431[2006], lv denied 7 NY3d 709 [2006]). There is no support for defendant's position thatthe override was not intended to apply when one of the felonies involved an undercoveroperation, rather than an actual underage victim. Defendant's conduct demonstrated a high riskof sexual recidivism, not lessened by the fact that the crime was only an attempt, or the fact thatthe intended victim, believed by defendant to be a child, was actually an undercover officer.Concur—Gonzalez, P.J., Moskowitz, DeGrasse, Manzanet-Daniels and Roman, JJ.