Opinion
2014-01-8
PEOPLE of State of New York, respondent, v. Gabriel ROMERO, appellant.
Steven Banks, New York, N.Y. (Michael C. Taglieri of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel), for respondent.
Steven Banks, New York, N.Y. (Michael C. Taglieri of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Sullivan, J.), dated February 6, 2012, which, after a hearing, designated him a level three sexually violent offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
In determining a defendant's risk level pursuant to the Sex Offender Registration Act (Correction Law art. 6–C; hereinafter SORA), “[a] downward departure from a sex offender's presumptive risk level generally is only warranted where there exists a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines” (People v. Watson, 95 A.D.3d 978, 979, 944 N.Y.S.2d 584; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] ). 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 otherwise not adequately taken into account by the 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).
Here, contrary to the defendant's contention, he failed to show that his expected deportation was, “as a matter of law, an appropriate mitigating factor” ( id.; see People v. Kachatov, 106 A.D.3d 973, 973, 965 N.Y.S.2d 373). Accordingly, the defendant was not entitled to a downward departure from the presumptive risk level. BALKIN, J.P., LOTT, AUSTIN and MILLER, JJ., concur.