Opinion
07-27-2016
PEOPLE of State of New York, respondent, v. Eric C. COOPER, appellant.
Laurette Mulry, Riverhead, NY (James H. Miller III of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, NY (Thomas Constant of counsel), for respondent.
Laurette Mulry, Riverhead, NY (James H. Miller III of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Thomas Constant of counsel), for respondent.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, SANDRA L. SGROI, and JOSEPH J. MALTESE, JJ.
Opinion Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated August 27, 2015, 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.
In this proceeding to determine the defendant's risk level under the Sex Offender Registration Act (see Correction Law art. 6–C; hereinafter SORA), the County Court properly assessed the defendant 20 points under risk factor 7 (relationship with the victim). The People established, by clear and convincing evidence, that the defendant committed his first offense against the victim on the same day he met her, and was thus a “stranger” to the victim within the meaning of risk factor 7 (see People v. Palacios, 137 A.D.3d 761, 26 N.Y.S.3d 351 ; People v. Sooknanan, 119 A.D.3d 540, 988 N.Y.S.2d 267 ; People v. Mabee, 69 A.D.3d 820, 820, 893 N.Y.S.2d 585 ; People v. Serrano, 61 A.D.3d 946, 947, 877 N.Y.S.2d 472 ).
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 if 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, 931 N.Y.S.2d 85 ; see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). Here, the defendant failed to identify any appropriate mitigating factor which would warrant a downward departure from his presumptive designation as a level three sex offender (see People v. Liguori, 128 A.D.3d 788, 7 N.Y.S.3d 910 ; People v. Wise, 127 A.D.3d 834, 6 N.Y.S.3d 292 ). Accordingly, the County Court properly denied the defendant's request for a downward departure.