Opinion
No. 2021-04319
05-25-2022
The People of the State of New York, respondent, v. Alonzo Brown, appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and William H. Branigan of counsel; Victoria Randall on the brief), for respondent. Patricia Pazner, New York, NY (Samuel Barr of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and William H. Branigan of counsel; Victoria Randall on the brief), for respondent.
Patricia Pazner, New York, NY (Samuel Barr of counsel), for appellant.
BETSY BARROS, J.P. CHERYL E. CHAMBERS, JOSEPH A. ZAYAS, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Queens County (Ushir Pandit-Durant, J.), dated May 13, 2021, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.
ORDERED that the order is affirmed, without costs or disbursements.
In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA), following a SORA hearing, the Supreme Court denied the defendant's request for a downward departure from his presumptive risk level, and designated him a level two sex offender. The defendant appeals.
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] [hereinafter Guidelines]). 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 Champagne, 140 A.D.3d 719, 720).
Here, the defendant failed to demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into account by the Guidelines that tended to establish a lower likelihood of reoffense or danger to the community (see People v Gillotti, 23 N.Y.3d at 861; People v Adams, 174 A.D.3d 828; People v Alvarez, 153 A.D.3d 645, 646; People v Wyatt, 89 A.D.3d at 121, 128; cf. People v Tineo-Morales, 101 A.D.3d 839).
Accordingly, the Supreme Court properly denied the defendant's request for a downward departure and designated him a level two sex offender.
BARROS, J.P., CHAMBERS, ZAYAS and DOWLING, JJ., concur.