Opinion
No. 2019-07677
01-26-2022
People of State of New York, respondent, v. Jacob Gable, appellant.
Laurette D. Mulry, Central Islip, NY (Anju M. Alexander of counsel), for appellant. Raymond A. Tierney, District Attorney, Riverhead, NY (Timothy P. Finnerty of counsel), for respondent.
Submitted - December 14, 2021
Laurette D. Mulry, Central Islip, NY (Anju M. Alexander of counsel), for appellant.
Raymond A. Tierney, District Attorney, Riverhead, NY (Timothy P. Finnerty of counsel), for respondent.
BETSY BARROS, J.P. FRANCESCA E. CONNOLLY SYLVIA O. HINDS-RADIX ROBERT J. MILLER, JJ.
DECISION & ORDER
Appeal from an order of the County Court, Suffolk County (Karen M. Wilutis, J.), dated June 21, 2019, which, after a hearing, designated the defendant 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 County Court, after a hearing, designated the defendant a level two sex offender.
Contrary to the defendant's contention, the County Court providently exercised its discretion in denying his request for a downward departure. Although in some cases involving offenders who possessed child pornography, the assessment of points under risk factor 7 might result in an overassessment of the risk a defendant poses to the community (see People v Smith, 187 A.D.3d 1228, 1229; People v Goldman, 150 A.D.3d 905, 907; see also People v Gillotti, 23 N.Y.3d 841, 860; People v Johnson, 11 N.Y.3d 416, 421), here, the defendant failed to identify and prove, by a preponderance of the evidence, the existence of an appropriate mitigating factor that would warrant a downward departure (see People v Morales, 192 A.D.3d 930; People v Smith, 187 A.D.3d at 1229; see also People v Gillotti, 23 N.Y.3d at 861).
Accordingly, the County Court properly designated the defendant a level two sex offender.
BARROS, JP, CONNOLLY, HINDS-RADIX and MILLER, JJ, concur