Opinion
2021–08324
02-01-2023
PEOPLE of State of New York, respondent, v. Philip M. EVANSON, appellant.
Richard L. Herzfeld, New York, NY, for appellant. Raymond A. Tierney, District Attorney, Riverhead, NY (Christopher Turk of counsel), for respondent.
Richard L. Herzfeld, New York, NY, for appellant.
Raymond A. Tierney, District Attorney, Riverhead, NY (Christopher Turk of counsel), for respondent.
BETSY BARROS, J.P., CHERYL E. CHAMBERS, JOSEPH A. ZAYAS, HELEN VOUTSINAS, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Suffolk County (Chris Ann Kelley, J.), dated March 9, 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), the Supreme Court assessed the defendant 95 points on the risk assessment instrument, denied his application for a downward departure from his presumptive risk level, and designated him a level two sex offender. On appeal, the defendant challenges the denial of his application for a downward departure.
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 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, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; 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, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Champagne, 140 A.D.3d 719, 720, 31 N.Y.S.3d 218 ).
Here, the defendant failed to sustain his burden of proof in support of his application for a downward departure as the purported mitigating factors that he identified were adequately taken into account by the Guidelines and did not establish a lower likelihood of reoffense or danger to the community to warrant a downward departure (see People v. Rocano–Quintuna, 149 A.D.3d 1114, 53 N.Y.S.3d 170 ; People v. Perez, 138 A.D.3d 1081, 28 N.Y.S.3d 905 ). Accordingly, the Supreme Court properly denied the defendant's application for a downward departure and designated him a level two sex offender.
BARROS, J.P., CHAMBERS, ZAYAS and VOUTSINAS, JJ., concur.