Opinion
Nos. 2021-02871 2021-02872
06-21-2023
The People of the State of New York, Respondent, v. Tiquan Davis, Appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jean M. Joyce of counsel; Darci Siegel on the brief), for respondent. Steven A. Feldman, Manhasset, NY, for Appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jean M. Joyce of counsel; Darci Siegel on the brief), for respondent.
Steven A. Feldman, Manhasset, NY, for Appellant.
BETSY BARROS, J.P., ANGELA G. IANNACCI, LINDA CHRISTOPHER, BARRY E. WARHIT, JJ.
DECISION & ORDER
Appeals by the defendant from two orders of the Supreme Court, Kings County (Guy J. Mangano, Jr., J.), both dated April 21, 2021, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.
ORDERED that the orders are affirmed, without costs or disbursements.
The defendant was convicted, after separate jury trials, of rape in the first degree and other offenses under Indictment No. 5511/94, and rape in the first degree and other offenses under Indictment No. 11291/94. After a hearing relating to both indictments pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA), at which the defendant sought a downward departure from his presumptive risk level three designation, the Supreme Court designated the defendant a level three sex offender with respect to each indictment.
"An offender 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 not otherwise 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 Curry, 158 A.D.3d 52, 58; see People v Gillotti, 23 N.Y.3d 841, 861; People v Wyatt, 89 A.D.3d 112, 128; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]). If the offender 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 offender's dangerousness and risk of sexual recidivism (see People v Gillotti, 23 N.Y.3d at 861; People v Bigelow, 175 A.D.3d 1443).
Here, the defendant failed to demonstrate that his age at the time of the SORA hearing, 48 years old, constituted an appropriate mitigating factor (see People v Corrica, 203 A.D.3d 1086, 1087; People v Porciello, 193 A.D.3d 993; People v Rivas, 185 A.D.3d 740). Moreover, contrary to the defendant's contention, the support of his family upon his release from prison is adequately taken into account by the Guidelines (see People v Felton, 175 A.D.3d 734, 735; People v Adams, 174 A.D.3d 828, 829-830; People v MacCoy, 155 A.D.3d 897, 898).
Upon considering all of the mitigating factors identified by the defendant, the Supreme Court providently exercised its discretion in determining that the totality of the circumstances did not warrant a downward departure from the presumptive risk level three designation (see People v Gillotti, 23 N.Y.3d at 861; People v Saintilus, 169 A.D.3d 838).
The defendant's remaining contention is without merit.
Accordingly, the Supreme Court properly denied the defendant's application for a downward departure and designated him a level three sex offender.
BARROS, J.P., IANNACCI, CHRISTOPHER and WARHIT, JJ., concur.