Opinion
2014-10-8
PEOPLE of State of New York, respondent, v. Roger NUNEZ, appellant.
Thomas N.N. Angell, Poughkeepsie, N.Y. (Steven Levine of counsel), for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kristen A. Rappleyea of counsel), for respondent.
Thomas N.N. Angell, Poughkeepsie, N.Y. (Steven Levine of counsel), for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kristen A. Rappleyea of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Dutchess County (Forman, J.), dated January 3, 2013, which, after a hearing, designated him a level two sexually violent offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
“A defendant seeking a downward departure 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 not otherwise adequately taken into account by the [Sex Offender Registration Act] Guidelines, and (2) establishing the facts in support of its existence by a preponderance of the evidence’ ” (People v. Roldan, 111 A.D.3d 909, 910, 975 N.Y.S.2d 681, quoting People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85). Upon our review of the record, we conclude that, contrary to his primary argument on appeal, the defendant failed to meet his burden in this respect ( see People v. Wortham, 119 A.D.3d 666, 989 N.Y.S.2d 618; People v. Wood, 112 A.D.3d 602, 975 N.Y.S.2d 910).
The defendant's remaining contentions are without merit.
Accordingly, the County Court properly denied the defendant's application for a downward departure from his designation as a level two sexually violent offender pursuant to Correction Law article 6–C. MASTRO, J.P., CHAMBERS, AUSTIN and SGROI, JJ., concur.