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People v. Robinson

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Jul 18, 2018
163 A.D.3d 883 (N.Y. App. Div. 2018)

Opinion

2016–03753

07-18-2018

PEOPLE of State of New York, respondent, v. Derrias ROBINSON, appellant.

The Legal Aid Society, New York, N.Y. (Susan Epstein of counsel), for appellant. Michael E. McMahon, District Attorney, Staten Island, N.Y. (Morrie E. Kleinbart and Alexander Fumelli of counsel), for respondent.


The Legal Aid Society, New York, N.Y. (Susan Epstein of counsel), for appellant.

Michael E. McMahon, District Attorney, Staten Island, N.Y. (Morrie E. Kleinbart and Alexander Fumelli of counsel), for respondent.

RUTH C. BALKIN, J.P. LEONARD B. AUSTIN SANDRA L. SGROI ANGELA G. IANNACCI, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Richmond County (Mario F. Mattei, J.), dated April 6, 2016, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is affirmed, without costs or disbursements.

In this proceeding pursuant to the Sex Offender Registration Act (see Correction Law art. 6–C; hereinafter SORA), the Supreme Court assessed the defendant 110 points on the risk assessment instrument, which is within the range for a presumptive designation as a level three sex offender. The court denied the defendant's request for a downward departure and designated him a level three sex offender. On appeal, the defendant challenges only the denial of his request for a downward departure.

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] ). Here, the defendant failed to identify any such mitigating factor (see People v. Young, 158 A.D.3d 829, 68 N.Y.S.3d 887 ). Accordingly, we agree with the Supreme Court's determination denying the defendant's request for a downward departure and designating him a level three sex offender.

BALKIN, J.P., AUSTIN, SGROI and IANNACCI, JJ., concur.


Summaries of

People v. Robinson

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Jul 18, 2018
163 A.D.3d 883 (N.Y. App. Div. 2018)
Case details for

People v. Robinson

Case Details

Full title:People of State of New York, respondent, v. Derrias Robinson, appellant.

Court:SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Jul 18, 2018

Citations

163 A.D.3d 883 (N.Y. App. Div. 2018)
163 A.D.3d 883
2018 N.Y. Slip Op. 5345