Opinion
07-26-2017
PEOPLE of State of New York, respondent, v. Gerson MUNGUIA, appellant.
Lynn W.L. Fahey, New York, NY (Jenin Younes of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Jenin Younes of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Foley, J.), dated September 16, 2015, 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.
The defendant appeals from his designation as a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq. ; hereinafter SORA), contending that the Supreme Court should have granted his application for a downward departure from his presumptive risk level designation.
A defendant seeking a downward departure must identify mitigating circumstances that are of a kind, or to a degree, not adequately taken into account by the SORA guidelines, and must prove the existence of those circumstances by a preponderance of the evidence (see People v. Gillotti, 23 N.Y.3d 841, 861–864, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Kohout, 145 A.D.3d 922, 923, 44 N.Y.S.3d 470 ). If the defendant satisfies that burden, "the law permits a departure, but the court still has discretion to refuse to depart or to grant a departure" (People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). In exercising this discretion, the court must 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 id. ; People v. Kohout, 145 A.D.3d at 923, 44 N.Y.S.3d 470 ).
Under the circumstances of this case, the Supreme Court providently exercised its discretion in denying the defendant's application for a downward departure from his presumptive designation as a level two sex offender (see People v. Rossano, 140 A.D.3d 1042, 1043, 35 N.Y.S.3d 364 ; People v. Rotunno, 117 A.D.3d 1019, 986 N.Y.S.2d 344 ).
MASTRO, J.P., RIVERA, HALL and MALTESE, JJ., concur.