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People v. Jolley

Supreme Court, Appellate Division, Second Department, New York.
Oct 25, 2017
154 A.D.3d 977 (N.Y. App. Div. 2017)

Opinion

10-25-2017

PEOPLE of State of New York, Respondent, v. Matthew JOLLEY, Appellant.

Seymour W. James, Jr., New York, NY (Kerry Elgarten of Counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Joyce Adolfsen of Counsel), for respondent.


Seymour W. James, Jr., New York, NY (Kerry Elgarten of Counsel), for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Joyce Adolfsen of Counsel), for respondent.

ORDERED that the order is affirmed, without costs or disbursements.

The Supreme Court properly rejected the defendant's request for a downward departure from the presumptive risk level (see Correction Law article 6–C; hereinafter SORA). A court determining a defendant's risk level under SORA may not downwardly depart from the presumptive risk level unless the defendant first identifies, and then proves by a preponderance of the evidence, the facts in support of, "a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines" ( People v. Lathan, 129 A.D.3d 686, 686–687, 8 N.Y.S.3d 921 ; see People v. Warren, 152 A.D.3d 551, 551, 54 N.Y.S.3d 871; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] ). Here, the defendant failed to identify a proper mitigating factor (see People v. Warren, 152 A.D.3d at 551, 54 N.Y.S.3d 871; People v. Rodriguez, 145 A.D.3d 489, 490, 44 N.Y.S.3d 16 ; People v. Roldan, 140 A.D.3d 411, 412, 30 N.Y.S.3d 871 ). Accordingly, there was no basis for a downward departure, and the court properly designated the defendant a level two sex offender (see People v. Warren, 152 A.D.3d at 551, 54 N.Y.S.3d 871).

BALKIN, J.P., HINDS–RADIX, DUFFY and CONNOLLY, JJ., concur.


Summaries of

People v. Jolley

Supreme Court, Appellate Division, Second Department, New York.
Oct 25, 2017
154 A.D.3d 977 (N.Y. App. Div. 2017)
Case details for

People v. Jolley

Case Details

Full title:PEOPLE of State of New York, Respondent, v. Matthew JOLLEY, Appellant.

Court:Supreme Court, Appellate Division, Second Department, New York.

Date published: Oct 25, 2017

Citations

154 A.D.3d 977 (N.Y. App. Div. 2017)
61 N.Y.S.3d 917