Opinion
No. 2019-14576
11-30-2022
The People of the State of New York, Respondent, v. Kenneth Goodwin, Appellant.
Patricia Pazner, New York, NY (Benjamin Welikson of counsel; Rico Altman-Merino on the brief), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Denise Pavlides of counsel; Andrew Holloway on the brief), for respondent.
Patricia Pazner, New York, NY (Benjamin Welikson of counsel; Rico Altman-Merino on the brief), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Denise Pavlides of counsel; Andrew Holloway on the brief), for respondent.
MARK C. DILLON, J.P., LINDA CHRISTOPHER, WILLIAM G. FORD, JANICE A. TAYLOR, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (Guy James Mangano, Jr., J.), dated December 11, 2019, 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 appeals from an order, made after a hearing, designating him a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA). He contends that the Supreme Court erred in denying his application for a downward departure from his presumptive risk level.
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; see People v Gillotti, 23 N.Y.3d 841, 861; 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 factors 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; People v Champagne, 140 A.D.3d 719, 720).
Here, the Supreme Court properly denied the defendant's application for a downward departure. Since the defendant did not assert his advanced age as a ground for a downward departure at the SORA hearing, the defendant failed to preserve for appellate review his contention that a downward departure was warranted based on his advanced age (see People v Colon, 186 A.D.3d 1730, 1731). In any event, he failed to demonstrate by a preponderance of the evidence that his age at the time of the SORA hearing would minimize his risk of reoffense or danger to the community (see People v Jimenez, 178 A.D.3d 1099, 1101). The defendant's result on the Static-99R alternate risk assessment does not, standing alone, qualify as a mitigating factor (see id.). The other mitigating factors the defendant identified either were adequately taken into account by the Guidelines or did not warrant a downward departure from the presumptive risk level (see People v Hunter, 198 A.D.3d 691, 692).
DILLON, J.P., CHRISTOPHER, FORD and TAYLOR, JJ., concur.