Opinion
2019–14576
11-30-2022
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, 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 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, 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 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, 130 N.Y.S.3d 89 ). 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, 115 N.Y.S.3d 86 ). 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, 152 N.Y.S.3d 341 ).
DILLON, J.P., CHRISTOPHER, FORD and TAYLOR, JJ., concur.