People v. Agnew

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 [2006], lv denied 7 NY3d 709 [2006]). 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. Concur— Gonzalez, P.J., Moskowitz, DeGrasse, Manzanet-Daniels and Roman, JJ.