Opinion
2014–04658
01-17-2018
PEOPLE of State of New York, respondent, v. Ronald BOWER, appellant.
N. Scott Banks, Hempstead, N.Y. (Jeremy L. Goldberg and Dori Cohen of counsel), for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Jason R. Richards of counsel), for respondent.
N. Scott Banks, Hempstead, N.Y. (Jeremy L. Goldberg and Dori Cohen of counsel), for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Jason R. Richards of counsel), for respondent.
REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDERAppeal by the defendant from an order of the County Court, Nassau County (Teresa K. Corrigan, J.), dated April 2, 2014, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
In this proceeding pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA), the County Court assessed the defendant 10 points under risk factor 12 (acceptance of responsibility) and 10 points under risk factor 13 (conduct while confined). The assessment of these points was proper, as it was supported by clear and convincing evidence in the record, including evidence that the defendant still maintained his innocence of the crimes for which he was convicted after more than 20 years of incarceration, and evidence that he committed three tier II disciplinary violations and one tier III disciplinary violation while incarcerated (see People v. Anderson, 137 A.D.3d 988, 27 N.Y.S.3d 616 ; People v. Mosley, 106 A.D.3d 1067, 1068, 965 N.Y.S.2d 632 ; People v. Lewis, 37 A.D.3d 689, 690, 830 N.Y.S.2d 312 ).
The County Court properly denied the defendant's application for a downward departure from his presumptive risk level designation. A downward departure from a sex offender's presumptive risk level generally is warranted only where there exists a mitigating factor of a kind or to a degree not otherwise adequately taken into account by the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary (2006) (hereinafter SORA Guidelines) (see People v. Fryer, 101 A.D.3d 835, 836, 955 N.Y.S.2d 407 ). A defendant seeking a downward departure from the presumptive risk level has the initial burden of "(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence" ( People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85 ; see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). If the defendant "surmounts the first two steps, the law permits a departure, but the court still has discretion to refuse to depart or to grant a departure" ( People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see People v. Wyatt, 89 A.D.3d at 128, 931 N.Y.S.2d 85 ). Here, the defendant failed to establish, by a preponderance of the evidence, the existence of such a mitigating factor (see SORA Guidelines at 4; People v. Moultrie, 147 A.D.3d 800, 801, 45 N.Y.S.3d 590 ; People v. Simmons, 146 A.D.3d 912, 913, 45 N.Y.S.3d 535 ).
The defendant's remaining contentions are without merit.
Accordingly, the County Court properly designated the defendant a level three sex offender.
RIVERA, J.P., COHEN, HINDS–RADIX and BRATHWAITE NELSON, JJ., concur.