Opinion
11-02-2016
PEOPLE of State of New York, respondent, v. Jose GARCIA, appellant.
Seymour W. James, Jr., New York, N.Y. (Lawrence T. Hausman of counsel; Whitney Robinson on the brief), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Julian Joiris of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Lawrence T. Hausman of counsel; Whitney Robinson on the brief), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Julian Joiris of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Dowling, J.), dated September 22, 2010, 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.
When deciding whether a sex offender is entitled to a downward departure from his or her presumptive risk level, the court must determine, “[a]t the first step, ... whether the ... mitigating circumstances alleged by [the sex offender] are, as a matter of law, of a kind or to a degree not adequately taken into account by the [Sex Offender Registration Act (hereinafter SORA) ] guidelines. At the second step, the court must decide whether the [sex offender] has adduced sufficient evidence to meet [his or her] burden of proof in establishing that the alleged ... mitigating circumstances actually exist in the case at hand.... [A]t the third step, the court must exercise its discretion by weighing the aggravating and mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an [overassessment] of the [sex offender's] dangerousness and risk of sexual recidivism ” (People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [citations omitted]; see People v. Rossano, 140 A.D.3d 1042, 35 N.Y.S.3d 364 ).
Applying these principles here, we conclude that the Supreme Court providently exercised its discretion in deciding that no downward departure was warranted. Under the circumstances of this case, the defendant failed to demonstrate his entitlement to a downward departure based on his age at the time of the SORA adjudication (see e.g. People v. Graziano, 140 A.D.3d 1541, 35 N.Y.S.3d 739 ; People v. Santiago, 137 A.D.3d 762, 764, 26 N.Y.S.3d 339 ; People v. Ciudadreal, 125 A.D.3d 950, 1 N.Y.S.3d 858 ; People v. Torres, 124 A.D.3d 744, 745, 998 N.Y.S.2d 464 ; People v. McFarland, 120 A.D.3d 1121, 1122, 992 N.Y.S.2d 414 ; People v. Beyah, 76 A.D.3d 917, 917, 907 N.Y.S.2d 675 ; People v. Harrison, 74 A.D.3d 688, 688, 902 N.Y.S.2d 821 ). There was no proof submitted by the defendant tending to show that his age at the time of the SORA adjudication would, in and of itself, reduce the likelihood of reoffense.
We also conclude that no downward departure is warranted based on the defendant's prison disciplinary record (see People v. Perez, 138 A.D.3d 1081, 28 N.Y.S.3d 905 ; People v. Torres, 124 A.D.3d at 745, 998 N.Y.S.2d 464 ), the defendant's deportation subsequent to the SORA adjudication (see People v. Ciudadreal, 125 A.D.3d 950, 1 N.Y.S.3d 858 ; see also People v. Leshchenko, 127 A.D.3d 833, 4 N.Y.S.3d 903 ; People v. Barrett, 123 A.D.3d 783, 784, 996 N.Y.S.2d 547 ; People v. Pavia, 121 A.D.3d 960, 993 N.Y.S.2d 782 ; People v. Romero, 113 A.D.3d 605, 977 N.Y.S.2d 900 ), or any of the other factors upon which the defendant presently relies.
Accordingly, the Supreme Court properly designated the defendant a level three sex offender.
DICKERSON, J.P., COHEN, MILLER and BRATHWAITE NELSON, JJ., concur.