Opinion
2009-04685
06-16-2021
People of State of New York, respondent, v. Valeena Bright, appellant.
Janet E. Sabel, New York, NY (Laura Lieberman Cohen of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.
Submitted - May 19, 2021
Janet E. Sabel, New York, NY (Laura Lieberman Cohen of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.
MARK C. DILLON, J.P. LEONARD B. AUSTIN BETSY BARROS VALERIE BRATHWAITE NELSON LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (James P. Sullivan, J.), dated February 20, 2009, which, after a hearing, designated her 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 her plea of guilty, of promoting prostitution in the second degree. Following a hearing to determine the defendant's risk level under the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA), the Supreme Court assessed a total of 125 points under the risk assessment instrument and designated the defendant a level three sex offender. The defendant appeals.
"In establishing a defendant's risk level pursuant to SORA, the People bear the burden of establishing facts supporting the determination sought by clear and convincing evidence" (People v Levy, 192 A.D.3d 928, 929, citing Correction Law § 168-n[3]; People v Guadeloupe, 173 A.D.3d 910, 911).
Contrary to the defendant's contention, the Supreme Court properly assessed 10 points under risk factor 2 (sexual contact with victim) for contact under clothing. The assessment of points was supported by clear and convincing evidence in the record (see Correction Law § 168-n[3]; see generally People v Dubeau, 174 A.D.3d 748, 749).
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; see People v Gillotti, 23 N.Y.3d 841, 861; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). If the defendant 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 defendant's dangerousness and risk of sexual recidivism (see People v Gillotti, 23 N.Y.3d at 861; People v Alvarado, 173 A.D.3d 909, 910).
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 the purported mitigating factor by a preponderance of the evidence (see 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, AUSTIN, BARROS, BRATHWAITE NELSON and CHRISTOPHER, JJ, concur