Opinion
12-14-2016
PEOPLE of State of New York, respondent, v. Wilmer CALLE–CALLE, appellant.
Lynn W.L. Fahey, New York, NY (Bryan D. Kreykes of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Joyce Adolfsen, and Daniel Berman of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Bryan D. Kreykes 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 (Cyrulnik, J.), dated March 25, 2016, 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.
Under the Sex Offender Registration Act (Correction Law art. 6–C), a defendant requesting a downward departure from that defendant's presumptive risk level “must identify, 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 Sex Offender Registration Act: Risk Assessment Guidelines and Commentary (2006)” (People v. Carter, 138 A.D.3d 706, 707, 30 N.Y.S.3d 141 ; see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). “The defendant must then prove the existence of that factor in the case by a preponderance of the evidence” (People v. Carter, 138 A.D.3d at 707, 30 N.Y.S.3d 141 ; see People v.
Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). “If the defendant satisfies that burden, a downward departure becomes a matter of discretion for the court. In determining whether to downwardly depart, the court must examine all the relevant circumstances” (People v. Carter, 138 A.D.3d at 707, 30 N.Y.S.3d 141 ; see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). Here, the Supreme Court properly denied the defendant's application for a downward departure from his presumptive risk level, and, thus, properly designated him a level two sex offender (see People v. Vizcarra, 138 A.D.3d 815, 816, 28 N.Y.S.3d 336 ; People v. Sadler, 124 A.D.3d 613, 613–614, 997 N.Y.S.2d 915 ).
DILLON, J.P., LEVENTHAL, COHEN and MILLER, JJ., concur.