Opinion
2019–11243
12-23-2020
PEOPLE of State of New York, respondent, v. Yuleiny PENA–JAMES, appellant.
Clare J. Degnan, White Plains, N.Y. (Salvatore A. Gaetani of counsel; Bridget McCarthy on the brief), for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Jill Oziemblewski and William C. Milaccio of counsel), for respondent.
Clare J. Degnan, White Plains, N.Y. (Salvatore A. Gaetani of counsel; Bridget McCarthy on the brief), for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Jill Oziemblewski and William C. Milaccio of counsel), for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Westchester County (Susan Cacace, J.), dated July 25, 2019, which, after a hearing, designated her a level two sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
In a proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6–C [hereinafter SORA] ), 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 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 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 ).
We agree with the Supreme Court's determination denying the defendant's application for a downward departure from her presumptive risk level. Contrary to the defendant's contention, she failed to prove by a preponderance of the evidence that her gender and prior victimization were appropriate mitigating factors that reduced her likelihood of recidivism (see People v. Santiago, 137 A.D.3d 762, 26 N.Y.S.3d 339 ; see also People v. Wyatt, 89 A.D.3d at 128, 931 N.Y.S.2d 85 ). Moreover, in denying the application, the court properly considered factors already addressed by the Guidelines and risk assessment factors, such as the defendant's status as an untreated sex offender (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). Finally, the court properly considered the defendant's abuse of a familial relationship and trust in denying the application (see e.g. People v. Del Rosario, 170 A.D.3d 759, 759, 93 N.Y.S.3d 580 ; People v. Michaux, 157 A.D.3d 735, 736–737, 68 N.Y.S.3d 499 ; People v. Ziliox, 145 A.D.3d 925, 925, 44 N.Y.S.3d 132 ). Accordingly, we agree with the Supreme Court's determination designating the defendant a level two sex offender.
DILLON, J.P., CHAMBERS, AUSTIN, HINDS–RADIX and CHRISTOPHER, JJ., concur.