Opinion
07-05-2017
PEOPLE of State of New York, respondent, v. Douglas WARREN, appellant.
Laurette D. Mulry, Riverhead, NY (Kirk R. Brandt of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, NY (Marion M. Tang of counsel), for respondent.
Laurette D. Mulry, Riverhead, NY (Kirk R. Brandt of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Marion M. Tang of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated August 28, 2016, 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.
The County Court properly rejected the defendant's request for a downward departure from the presumptive risk level. A court determining a defendant's risk level under the Sex Offender Registration Act (hereinafter SORA) may not downwardly depart from the presumptive risk level unless the defendant first identifies and proves by a preponderance of the evidence the facts in support of "a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines" (People v. Lathan, 129 A.D.3d 686, 686–687, 8 N.Y.S.3d 921 ; see SORA: Risk Assessment Guidelines and Commentary at 4). Here, the defendant failed to identify a proper mitigating factor (see People v. Rodriguez, 145 A.D.3d 489, 490, 44 N.Y.S.3d 16 ; People v. Roldan, 140 A.D.3d 411, 412, 30 N.Y.S.3d 871 ). The defendant's contention that use of the risk assessment instrument violated due process is without merit (see People v. Ferrer, 69 A.D.3d 513, 514, 894 N.Y.S.2d 387 ; cf. People v. McFarland, 29 Misc.3d 1206[A], 2010 N.Y. Slip Op. 51705[U], 2010 WL 3892252 [Sup.Ct., N.Y. County 2010, affd. 88 A.D.3d 547, 931 N.Y.S.2d 225 ]; cf. generally Rep. on Legislation by the Criminal Courts Committee, the Criminal Justice Operations Committee, the Criminal Law Committee, and the Corrections and Community Reentry Committee, A2190, S3097, reissued June 2015, http://www2.nycbar.org/pdf/report/uploads/20072469–SexOffender RegistrationActReport.pdf [accessed June 15, 2017] ).
BALKIN, J.P., CHAMBERS, MALTESE and DUFFY, JJ., concur.