People v. Pierre (Rodney)

The People of the State of New York, Respondent, against Rodney Pierre, Defendant-Appellant. Defendant appeals from an order of the Criminal Court of the City of New York, New York County (Robert M. Mandelbaum, J.), entered September 19, 2014, which, after a hearing, adjudicated him a level three sex offender and a predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law Art. 6-C). Per Curiam. Order (Robert M. Mandelbaum, J.), entered September 19, 2014, affirmed. Defendant is subject to the presumptive override for his 1993 felony conviction for sexual abuse in the first degree (see Penal Law § 130.65), which results in a level three adjudication independent of any point assessments (see People v Arps, 140 AD3d 455, 456 [2016], lv denied 28 NY3d 968 [2016]). The court providently exercised its discretion in declining to grant a downward departure (see generally People v Howard, 27 NY3d 337, 342 [2016]; People v Gillotti, 23 NY3d 841 [2014]). Although the predicate felony conviction occurred many years ago, defendant's criminal record, including multiple sex crime convictions, years apart, demonstrates a dangerous propensity to commit sex crimes (see People v Rodriguez, 122 AD3d 538 [2014], lv denied 24 NY3d 915 [2015]; People v Jamison, 107 AD3d 531 [2013], lv denied 22 NY3d 852 [2013]; People v Poole, 105 AD3d 654 [2013], lv denied 21 NY3d 863 [2013]). Defendant has also been convicted of failing to register as a sex offender in Florida, an aggravating factor indicative of a risk of reoffense (see People v Rivera, 78 AD3d 1627 [2010], lv denied 16 NY3d 705 [2011]; see also People v Boyd, 121 AD3d 658 [2014] [New Jersey conviction for failure to register as a sex offender justified the court's determination to grant the People's request for an upward departure]). Defendant's successful completion of sex offender treatment was adequately taken into account by the risk assessment instrument (see People v Guardiola, 143 AD3d 519 [2016], lv denied 28 NY3d 912 [2017]; People v McNeely, 124 AD3d 433 [2015], lv denied 25 NY3d 908 [2015]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concurI concurI concur Decision Date: September 22, 2017