Opinion
2015-04-08
PEOPLE of State of New York, respondent, v. Fedor LESHCHENKO, appellant.
Seymour W. James, Jr., New York, N.Y. (Michael C. Taglieri of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Michael C. Taglieri of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Mangano, Jr., J.), dated December 3, 2013, 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 determining a defendant's risk level pursuant to the Sex Offender Registration Act (Correction Law article 6–C [hereinafter SORA] ), “[a] downward departure from a sex offender's presumptive risk level generally is only warranted where there exists a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines” (People v. Watson, 95 A.D.3d 978, 979, 944 N.Y.S.2d 584; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701; People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85).
Here, contrary to the defendant's contention, he failed to establish that his expected deportation was, “ ‘as a matter of law, an appropriate mitigating factor’ ” (People v. Barrett, 123 A.D.3d 783, 996 N.Y.S.2d 547, quoting People v. Wyatt, 89 A.D.3d at 128, 931 N.Y.S.2d 85; see People v. Pavia, 121 A.D.3d 960, 993 N.Y.S.2d 782; People v. Romero, 113 A.D.3d 605, 977 N.Y.S.2d 900; People v. Kachatov, 106 A.D.3d 973, 965 N.Y.S.2d 373). Accordingly, the defendant was not entitled to a downward departure from the presumptive risk level, and the defendant was properly designated a level three sex offender.