Opinion
2020–00249
11-04-2020
PEOPLE of State of New York, respondent, v. Reuben LEWIS, appellant.
Paul Skip Laisure, New York, N.Y. (Samuel Barr of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Trail and William H. Branigan of counsel; Victoria Randall on the brief), for respondent.
Paul Skip Laisure, New York, N.Y. (Samuel Barr of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Trail and William H. Branigan of counsel; Victoria Randall on the brief), for respondent.
REINALDO E. RIVERA, J.P., JOSEPH J. MALTESE, BETSY BARROS, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Queens County (John B. Latella, J.), dated December 4, 2019, 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.
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 SORA: 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 ).
Contrary to the defendant's contention, a downward departure on the basis of the defendant's age was not warranted. While advanced age at the time of release may constitute a mitigating factor, the defendant failed to demonstrate that the defendant's age at the time of the SORA hearing, 51 years old, constituted an appropriate mitigating factor and minimized the risk of reoffense (see People v. Adams, 174 A.D.3d 828, 829, 102 N.Y.S.3d 688 ; People v. Lewis, 173 A.D.3d 784, 785–786, 100 N.Y.S.3d 90 ; People v. Munoz, 155 A.D.3d 1068, 1069, 64 N.Y.S.3d 594 ). Moreover, any remaining factors identified by the defendant did not constitute appropriate mitigating factors which would warrant a downward departure (see People v. Wyatt, 89 A.D.3d at 128, 931 N.Y.S.2d 85 ).
Accordingly, we agree with the Supreme Court's designation of the defendant as a level two sex offender.
RIVERA, J.P., MALTESE, BARROS, BRATHWAITE NELSON and IANNACCI, JJ., concur.