People v. McClain

People v McClain (2021 NY Slip Op 01149)

People v McClain

2021 NY Slip Op 01149

Decided on February 23, 2021

Appellate Division, First Department

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.

Decided and Entered: February 23, 2021
Before: Kapnick, J.P., Webber, Mazzarelli, Oing, JJ.

Ind No. 867/14 Appeal No. 13176 Case No. 2017-2687

[*1]The People of the State of New York, Respondent,

v

Robert McClain, Defendant-Appellant.

Janet E. Sabel, The Legal Aid Society, New York (Jose David Rodriguez Gonzalez of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Shera Knight of counsel), for respondent.

Order, Supreme Court, Bronx County (Margaret L. Clancy, J.), entered on or about September 9, 2016, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court correctly assessed 30 points for a prior violent felony, based on defendant's conviction of third-degree criminal possession of a weapon pursuant to former Penal Law § 265.02(4), which was subsequently reclassified as the more serious violent felony of second-degree possession (see Penal Law § 265.03[3]). A conviction such as defendant's qualifies as a violent felony for predicate felony sentencing purposes (see People v Smith, 27 NY3d 652, 670 [2016]), and we see no reason to reach a different conclusion in the context of sex offender classification.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 23, 2021