Opinion
2012-02-21
PEOPLE of State of New York, respondent, v. Tyrone GANT, appellant.
Steven Banks, New York, N.Y. (Susan Epstein of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
Steven Banks, New York, N.Y. (Susan Epstein of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Garnett, J.), dated September 8, 2009, 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 defendant contends that the Supreme Court erred in denying his application for a downward departure from his presumptive level three risk assessment. “However, a court may not downwardly depart from the presumptive risk level unless it concludes that there exists a mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” ( People v. Martin, 90 A.D.3d 728, 728, 934 N.Y.S.2d 321; see *813 People v. Bowden, 88 A.D.3d 972, 972, 931 N.Y.S.2d 640, lv. denied 18 N.Y.3d 806, 2012 WL 445938, 2012 N.Y. LEXIS 188 [table]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006 ed.] ).
Here, the defendant failed to demonstrate, by a preponderance of the evidence, the existence of a mitigating factor of a kind, or to a degree, that was not adequately taken into account by the risk assessment guidelines and that would justify a downward departure ( see People v. Martin, 90 A.D.3d 728, 934 N.Y.S.2d 321; People v. Wyatt, 89 A.D.3d 112, 127–128, 931 N.Y.S.2d 85, lv. denied 18 N.Y.3d 803, 2012 WL 43762, 2012 N.Y. LEXIS 34 [table]; People v. Bowden, 88 A.D.3d at 972, 931 N.Y.S.2d 640). Accordingly, the Supreme Court properly denied the defendant's application for a downward departure from his presumptive risk level status.