Opinion
2022-01821
03-16-2022
The People of the State of New York, respondent, v. Grayson Cooper, appellant.
Janet E. Sabel, New York, NY (Kerry Elgarten of counsel), for appellant. Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart of counsel; Nicole Kaye on the brief), for respondent.
Janet E. Sabel, New York, NY (Kerry Elgarten of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart of counsel; Nicole Kaye on the brief), for respondent.
MARK C. DILLON, J.P., FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, LARA J. GENOVESI, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Richmond County (Mario F. Mattei, J.), dated October 26, 2018, 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.
The defendant was convicted, upon a plea of guilty, of criminal sexual act in the first degree. After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA), at which the defendant sought a downward departure from his presumptive level three risk designation, the Supreme Court designated the defendant a level three sex offender.
"An offender 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 not otherwise taken into account by [SORA] Guidelines, and (2) establishing the facts in support of its existence by a preponderance of the evidence" (People v Curry, 158 A.D.3d 52, 58; see People v Gillotti, 23 N.Y.3d 841, 861; People v Wyatt, 89 A.D.3d 112, 128; see also SORA: Risk Assessment Guidelines and Commentary at 4 [2006]). If the offender makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the offender's dangerousness and risk of sexual recidivism (see People v Gillotti, 23 N.Y.3d at 861; People v Bigelow, 175 A.D.3d 1443, 1444).
Here, the defendant failed to identify, as a matter of law, an appropriate mitigating factor and failed to establish the facts in support of the existence of any purported mitigating factor by a preponderance of the evidence (see People v Bright, 195 A.D.3d 868, 869; People v Price, 164 A.D.3d 1282, 1283; People v McCurdy, 121 A.D.3d 875, 875-876).
Accordingly, the Supreme Court properly denied the defendant's request for a downward departure.
DILLON, J.P., CONNOLLY, BRATHWAITE NELSON and GENOVESI, JJ., concur.