NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
December 15, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
GERALD AGNEW, DEFENDANT-APPELLANT.
Order, Supreme Court, New York County (Ronald A. Zweibel, J.), entered on or about January 12, 2009, which adjudicated defendant a level three sex offender under the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Gonzalez, P.J., Moskowitz, DeGrasse, Manzanet-Daniels, Roman, JJ.
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 , lv denied 7 NY3d 709 ). There is no support for defendant's position that the override was not intended to apply when one of the felonies involved an undercover operation, rather than an actual underage victim. Defendant's conduct demonstrated a high risk of sexual recidivism, not lessened by the fact that the crime was only an attempt, or the fact that the intended victim, believed by defendant to be a child, was actually an undercover officer.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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