Opinion
2018–12453
01-22-2020
PEOPLE of State of New York, Respondent, v. Darnell MCGHEE, Appellant.
Janet E. Sabel, New York, N.Y. (Jonathan McCoy of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.
Janet E. Sabel, New York, N.Y. (Jonathan McCoy of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.
DECISION & ORDER ORDERED that the amended order is affirmed, without costs or disbursements.
Following a hearing held pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA), the Supreme Court designated the defendant a level three sex offender. On this appeal, the defendant challenges the court's denial of his application for a downward departure from his presumptive risk level.
We agree with the Supreme Court's determination denying the defendant's application for a downward departure. 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, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see also SORA: Risk Assessment Guidelines and Commentary at 4 [2006] ). 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 over-assessment 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 ). Here, the defendant failed to prove the existence of an appropriate mitigating factor by a preponderance of evidence (see People v. Garcia, 176 A.D.3d 1240, 1241, 109 N.Y.S.3d 668 ; People v. Santos, 174 A.D.3d 658, 659, 102 N.Y.S.3d 272 ).
MASTRO, J.P., LEVENTHAL, MILLER, DUFFY and LASALLE, JJ., concur.