Opinion
08-09-2017
PEOPLE of State of New York, respondent, v. Vincente ALVAREZ, appellant.
Seymour W. James, Jr., New York, NY (Kerry Elgarten of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Joyce Adolfsen, and Daniel Berman 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, Joyce Adolfsen, and Daniel Berman of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Mangano, Jr., J.), dated November 25, 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.
Contrary to the defendant's contention, the Supreme Court properly assessed him 10 points under risk factor 12 for not accepting responsibility. The case summary states that during the defendant's interviews with the Probation Department and the Department of Corrections and Community Supervision counselors, he denied his guilt. Therefore, the court properly concluded that the defendant had not genuinely accepted responsibility for his criminal conduct (see People v. Benitez, 140 A.D.3d 1140, 1140–1141, 35 N.Y.S.3d 377 ). In any event, deducting the 10 points assessed under risk factor 12 from the total points assessed against the defendant would not alter his presumptive risk level (see People v. Noble, 146 A.D.3d 824, 824, 43 N.Y.S.3d 912 ; People v. George, 142 A.D.3d 1059, 1060–1061, 38 N.Y.S.3d 561 ).
"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 People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). Although "advanced age" may constitute a basis for a downward departure (SORA: Risk Assessment Guidelines and Commentary at 5 [2006] ), the defendant, who was 47 years old at the time of the SORA determination, failed to establish the facts in support of that ground by a preponderance of the evidence (see People v. Rocano–Quintuna, 149 A.D.3d 1114, 53 N.Y.S.3d 170 ; People v. Garcia, 144 A.D.3d 650, 651, 39 N.Y.S.3d 821 ; People v. Santiago, 137 A.D.3d 762, 765, 26 N.Y.S.3d 339 ). Further, the defendant failed to establish that his expected deportation was, "as a matter of law, an appropriate mitigating factor" ( People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85 ; see People v. Rubi, 132 A.D.3d 650, 650, 17 N.Y.S.3d 314 ; People v. Leshchenko, 127 A.D.3d 833, 833, 4 N.Y.S.3d 903 ).
Accordingly, the Supreme Court properly denied the defendant's request for a downward departure and designated him a level three sex offender.
DILLON, J.P., AUSTIN, ROMAN and COHEN, JJ., concur.