| People v Colon |
| 2016 NY Slip Op 00892 [136 AD3d 471] |
| February 9, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Michael Colon, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Sharmeen Mazumder ofcounsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Melanie A. Sarver of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Troy K. Webber, J.), rendered May 30,2014, convicting defendant, upon his plea of guilty, of rape in the third degree andcriminal sexual act in the third degree, and sentencing him to an aggregate term of threeyears, with 10 years' postrelease supervision, unanimously affirmed. Order, same courtand Justice entered on or about July 22, 2014, which adjudicated defendant a level threepredicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art6-C), unanimously affirmed, without costs.
As to the appeal from the judgment of conviction, we find that defendant did notmake a valid waiver of his right to appeal, but we perceive no basis for reducing theperiod of postrelease supervision.
As to defendant's civil appeal from his sex offender adjudication, the record supportsthe court's determination that defendant is subject to the presumptive override for a priorfelony sex crime conviction, which results in a level three adjudication independent ofany point assessments. The court properly exercised its discretion when it declined togrant a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). The mitigatingfactors cited by defendant were outweighed by the seriousness of defendant's underlyingcrimes and the recency of the prior felony sex crime. Concur—Friedman, J.P.,Acosta, Andrias, Saxe and Feinman, JJ.