Opinion
10-25-2017
PEOPLE of State of New York, Respondent, v. Matthew JOLLEY, Appellant.
Seymour W. James, Jr., New York, NY (Kerry Elgarten of Counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Joyce Adolfsen of Counsel), for respondent.
Seymour W. James, Jr., New York, NY (Kerry Elgarten of Counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Joyce Adolfsen of Counsel), for respondent.
ORDERED that the order is affirmed, without costs or disbursements.
The Supreme Court properly rejected the defendant's request for a downward departure from the presumptive risk level (see Correction Law article 6–C; hereinafter SORA). A court determining a defendant's risk level under SORA may not downwardly depart from the presumptive risk level unless the defendant first identifies, and then proves by a preponderance of the evidence, the facts in support of, "a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines" ( People v. Lathan, 129 A.D.3d 686, 686–687, 8 N.Y.S.3d 921 ; see People v. Warren, 152 A.D.3d 551, 551, 54 N.Y.S.3d 871; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] ). Here, the defendant failed to identify a proper mitigating factor (see People v. Warren, 152 A.D.3d at 551, 54 N.Y.S.3d 871; People v. Rodriguez, 145 A.D.3d 489, 490, 44 N.Y.S.3d 16 ; People v. Roldan, 140 A.D.3d 411, 412, 30 N.Y.S.3d 871 ). Accordingly, there was no basis for a downward departure, and the court properly designated the defendant a level two sex offender (see People v. Warren, 152 A.D.3d at 551, 54 N.Y.S.3d 871).
BALKIN, J.P., HINDS–RADIX, DUFFY and CONNOLLY, JJ., concur.