Opinion
2013-08723.
03-23-2016
PEOPLE of State of New York, respondent, v. Mario IBARRA, appellant.
Seymour W. James, Jr., New York, N.Y. (Joshua Norkin of counsel), for appellant. Michael E. McMahon, District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Paul M. Tarr of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Joshua Norkin of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Paul M. Tarr of counsel), for respondent.
Opinion
Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated July 11, 2013, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
Contrary to the People's contention, this appeal from an order designating the defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art. 6–C; hereinafter SORA) should not be dismissed on the ground that the defendant has been deported (see People v. Shim, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2016 N.Y. Slip Op. 1818, 2016 WL 1033584 2d Dept.2016; People v. Edwards, 117 A.D.3d 418, 985 N.Y.S.2d 43; People v. Gudino–Sanchez, 116 A.D.3d 565, 983 N.Y.S.2d 723; People v. Scott, 113 A.D.3d 491, 978 N.Y.S.2d 838).
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 [SORA] 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, 994 N.Y.S.2d 1, 18 N.E.3d 701). Here, the mitigating factors identified by the defendant were either adequately taken into account by the SORA Guidelines or did not warrant a downward departure from the presumptive risk level (see People v. Gelin, 128 A.D.3d 657, 7 N.Y.S.3d 609).
Accordingly, the Supreme Court properly denied the defendant's request for a downward departure from his presumptive designation as a level two sex offender.
LEVENTHAL, J.P., DICKERSON, ROMAN and HINDS–RADIX, JJ., concur.