Opinion
2020–08479
10-12-2022
PEOPLE of State of New York, respondent, v. Geraldino MEDINA, appellant.
Twyla Carter, New York, NY (Robin Richardson of counsel), for appellant. Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and George D. Adames of counsel), for respondent.
Twyla Carter, New York, NY (Robin Richardson of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and George D. Adames of counsel), for respondent.
COLLEEN D. DUFFY, J.P., ROBERT J. MILLER, DEBORAH A. DOWLING, BARRY E. WARHIT, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Richmond County (Marina Cora Mundy, J.), dated March 9, 2020, 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.
Contrary to the defendant's contention, the Supreme Court properly denied his request for a downward departure and designated him a level three 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. Jones, 196 A.D.3d 515, 515, 147 N.Y.S.3d 422, quoting 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 ; People v. Emery, 204 A.D.3d 944, 944–945, 164 N.Y.S.3d 888 ; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter SORA Guidelines]). "If the defendant makes that twofold showing, the SORA 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" ( People v. Sofo, 168 A.D.3d 891, 891–892, 90 N.Y.S.3d 290 ; see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Jones, 196 A.D.3d at 516, 147 N.Y.S.3d 422 ).
Here, the defendant failed to establish that the assessment of points under risk factor 9 for his prior youthful offender adjudication resulted in an overassessment of his risk level. The temporal remoteness of that adjudication was adequately taken into account by risk factor 9 (number and nature of prior crimes) and risk factor 10 (recency of prior felony or sex crime) under the SORA Guidelines (see People v. Emery, 204 A.D.3d at 944–945, 164 N.Y.S.3d 888 ; People v. Sofo, 168 A.D.3d at 892, 90 N.Y.S.3d 290 ; People v. Jewell, 119 A.D.3d 1446, 1448–1449, 989 N.Y.S.2d 766 ). The defendant's further contention that consideration of his youthful offender adjudication resulted in an overassessment of points because of his young age at the time of the underlying offense is unpreserved for appellate review, and, in any event, under the circumstances of this case, without merit (see People v. Kennedy, 160 A.D.3d 671, 671–672, 74 N.Y.S.3d 300 ; People v. Francis, 137 A.D.3d 91, 95, 25 N.Y.S.3d 221 ).
DUFFY, J.P., MILLER, DOWLING and WARHIT, JJ., concur.