Opinion
2018–08629
05-29-2019
PEOPLE of State of New York, Respondent, v. Omar MOSQUEDA, Appellant.
Clare J. Degnan, White Plains, N.Y. (Salvatore A. Gaetani of counsel; Alexandra A. O'Donnell on the brief), for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco and William C. Milaccio of counsel), for respondent.
Clare J. Degnan, White Plains, N.Y. (Salvatore A. Gaetani of counsel; Alexandra A. O'Donnell on the brief), for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco and William C. Milaccio of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.
DECISION & ORDERORDERED that the order is affirmed, without costs or disbursements.
The defendant was convicted, upon his plea of guilty, of course of sexual conduct against a child in the first degree. After a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA), at which the defendant sought a downward departure from his presumptive level three risk designation, the Supreme Court designated the defendant 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 [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 the 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 ).
Here, the defendant's contention that certain factors warrant a downward departure from his presumptive risk level is unpreserved for appellate review because he did not raise those grounds at the SORA hearing (see People v. Hogan , 163 A.D.3d 728, 728, 76 N.Y.S.3d 841 ; People v. Destio , 145 A.D.3d 1047, 1048, 45 N.Y.S.3d 487 ). In any event, the mitigating circumstances identified by the defendant either were adequately taken into account by the Guidelines or were not proven by a preponderance of the evidence (see People v. Alvin , 166 A.D.3d 1025, 1026, 86 N.Y.S.3d 752 ; People v. Rocano–Quintuna , 149 A.D.3d 1114, 1115, 53 N.Y.S.3d 170 ; People v. Benoit , 145 A.D.3d 687, 688, 43 N.Y.S.3d 406 ; People v. Santiago , 137 A.D.3d 762, 764–765 ). Accordingly, we agree with the Supreme Court's determination to deny the defendant's application for a downward departure from his presumptive level three risk designation.
MASTRO, J.P., LEVENTHAL, CONNOLLY and IANNACCI, JJ., concur.