People v. Leshchenko

Full title: People of State of New York, respondent, v. Fedor Leshchenko, appellant.

Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Apr 8, 2015

2015 N.Y. Slip Op. 2947 (N.Y. App. Div. 2015)

Opinion

2013-11105

04-08-2015

People of State of New York, respondent, v. Fedor Leshchenko, appellant.

Seymour W. James, Jr., New York, N.Y. (Michael C. Taglieri of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.

PETER B. SKELOS, J.P.

JOHN M. LEVENTHAL

JEFFREY A. COHEN

COLLEEN D. DUFFY, JJ.

Seymour W. James, Jr., New York, N.Y. (Michael C. Taglieri of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Mangano, Jr., J.), dated December 3, 2013, 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.

In determining a defendant's risk level pursuant to the Sex Offender Registration Act (Correction Law article 6-C [hereinafter SORA]), "[a] downward departure from a sex offender's presumptive risk level generally is only warranted where there exists a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines" (People v Watson, 95 AD3d 978, 979; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; People v Gillotti, 23 NY3d 841, 861; People v Wyatt, 89 AD3d 112, 128).

Here, contrary to the defendant's contention, he failed to establish that his expected deportation was, " as a matter of law, an appropriate mitigating factor'" (People v Barrett, 123 AD3d 783, quoting People v Wyatt, 89 AD3d at 128; see People v Pavia, 121 AD3d 960; People v Romero, 113 AD3d 605; People v Kachatov, 106 AD3d 973). Accordingly, the defendant was not entitled to a downward departure from the presumptive risk level, and the defendant was properly designated a level three sex offender.

SKELOS, J.P., LEVENTHAL, COHEN and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court