Opinion
2017–03545
01-09-2019
PEOPLE of State of New York, Respondent, v. Jermaine JONAS, Appellant.
Paul Skip Laisure, New York, N.Y. (Erica Horwitz of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ruth E. Ross, and Arieh Schulman of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Erica Horwitz of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ruth E. Ross, and Arieh Schulman of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., SANDRA L. SGROI, BETSY BARROS, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (Danny K. Chun, J.), dated February 27, 2016, 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.
The defendant was convicted, upon a plea of guilty, of patronizing a prostitute in the second degree. After a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA), at which the defendant sought a downward departure from his presumptive level-two risk designation, the Supreme Court designated the defendant a level two sex offender.
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 (hereinafter 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, 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 factor 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, contrary to the defendant's contention, a downward departure was not warranted, as none of the factors put forward by the defendant, either singly or in combination with each other, showed that the presumptive risk level overassessed the defendant's dangerousness and risk of sexual recidivism (see generally People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Baker, 163 A.D.3d 1007, 81 N.Y.S.3d 510 ; SORA: Risk Assessment Guidelines and Commentary at 2 [2006] ).
CHAMBERS, J.P., SGROI, BARROS and IANNACCI, JJ., concur.