Opinion
2015-05569.
07-26-2017
PEOPLE of State of New York, respondent, v. Raymond HERNAIZ, appellant.
Lynn W.L. Fahey, New York, NY (Erica Horwitz of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, William Branigan, and Josette Simmons McGhee of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Erica Horwitz of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, William Branigan, and Josette Simmons McGhee of counsel), for respondent.
RUTH C. BALKIN, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.
Appeal by the defendant from an order of the Supreme Court, Queens County (Gerald, J.), dated June 10, 2015, 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.Contrary to the defendant's contention, the Supreme Court properly assessed 15 points under risk factor 11 (drug or alcohol abuse). The assessment of these points was supported by clear and convincing evidence in the record, including the defendant's statements in the presentence report (see People v. Villanueva, 143 A.D.3d 794, 38 N.Y.S.3d 805 ; People v. Morrell, 139 A.D.3d 835, 836, 31 N.Y.S.3d 561 ; People v. Palacios, 137 A.D.3d 761, 762, 26 N.Y.S.3d 351 ; People v. Torres, 124 A.D.3d 744, 745, 998 N.Y.S.2d 464 ).
The Supreme Court did not err in denying the defendant's request for a downward departure to risk level two. 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 [Sex Offender Registration Act: Risk Assessment Guidelines and Commentary; hereinafter 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 ; People v. Wallace, 144 A.D.3d 775, 40 N.Y.S.3d 561 ). If the defendant "surmounts the first two steps, the law permits a departure, but the court still has discretion to refuse to depart or to grant a departure" ( People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see People v. Wyatt, 89 A.D.3d at 128, 931 N.Y.S.2d 85 ).
Here, the defendant failed to sustain his burden of proof in support of his request for a downward departure. The mitigating circumstances identified by the defendant either were adequately taken into account by the Guidelines, or were not proven by a preponderance of the evidence (see People v. Velasquez, 145 A.D.3d 924, 42 N.Y.S.3d 845 ; People v. Rossano, 140 A.D.3d 1042, 1043, 35 N.Y.S.3d 364 ; People v. Sanchez, 138 A.D.3d 946, 947, 28 N.Y.S.3d 621 ; People v. Santiago, 137 A.D.3d 762, 764, 26 N.Y.S.3d 339 ). Accordingly, the Supreme Court properly denied the defendant's request for a downward departure and adjudicated him a level three sex offender (see People v. Rukasov, 132 A.D.3d 748, 17 N.Y.S.3d 772 ; People v. Nethercott, 119 A.D.3d 918, 989 N.Y.S.2d 900 ).
In light of our determination, we need not address the defendant's remaining contention.