Opinion
2017–10339 Index No. 6059/10
12-11-2019
PEOPLE of State of New York, Respondent, v. Thomas MITCHELL, Appellant.
Paul Skip Laisure, New York, N.Y. (Joshua M. Levine of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ruth E. Ross of counsel; Anna Arena on the brief), for respondent.
Paul Skip Laisure, New York, N.Y. (Joshua M. Levine of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ruth E. Ross of counsel; Anna Arena on the brief), for respondent.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER ORDERED that the order is affirmed, without costs or disbursements.
At a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA), the defendant was assessed 95 points under the risk assessment instrument, presumptively placing him within the range for a level two designation. The defendant contends that the Supreme Court improvidently exercised its discretion in denying his request for a downward departure from the presumptive risk level.
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 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, a downward departure on the basis of the defendant's age was not warranted (see People v. Tromba , 157 A.D.3d 915, 916, 66 N.Y.S.3d 907 ; People v. Shelton , 126 A.D.3d 959, 960, 6 N.Y.S.3d 121 ; People v. Torres , 124 A.D.3d 744, 746, 998 N.Y.S.2d 464 ; People v. Lucius , 122 A.D.3d 819, 819–820, 996 N.Y.S.2d 659 ). Among other things, the study relied upon by the defendant failed to demonstrate by a preponderance of the evidence that his age, 51 years old at the time of his SORA hearing, constituted a basis for a downward departure (see People v. Whitney , 168 A.D.3d 776, 777, 89 N.Y.S.3d 638 ).
Moreover, none of the factors put forward by the defendant, either singly, in combination with each other, or in combination with the defendant's age, showed that the presumptive risk level overassessed the danger presented by the defendant and the risk of reoffense (see People v. Tromba , 157 A.D.3d at 916, 66 N.Y.S.3d 907 ; People v. Shelton , 126 A.D.3d at 960, 6 N.Y.S.3d 121 ; see also People v. Haye , 162 A.D.3d 801, 801, 79 N.Y.S.3d 304 ; People v. Curry , 158 A.D.3d 52, 58–59, 68 N.Y.S.3d 483 ; People v. Rodriguez , 145 A.D.3d 489, 490, 44 N.Y.S.3d 16 ).
Accordingly, the Supreme Court did not improvidently exercise its discretion in declining to downwardly depart from the presumptive risk level.
BALKIN, J.P., CHAMBERS, COHEN and CONNOLLY, JJ., concur.