People v. Birriel ( 2013 )

Order, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), entered on or about December 5, 2011, which adjudicated defendant a level three sexually violent predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court correctly applied the presumptive override for a prior felony sex crime conviction. At the hearing, defendant did not establish that he was being released to a secure psychiatric facility. In any event, he has still not established that the nature of his psychiatric placement is a mitigating factor, not adequately taken into account by the risk assessment instrument, that would warrant any type of downward departure (see e.g. People v James, 103 AD3d 588 [1st Dept 2013], lv denied 21 NY3d 856 [2013]). Concur — Tom, J.P., Sweeny, Saxe, Freedman and Clark, JJ.