Opinion
11-16-2016
PEOPLE of State of New York, respondent, v. Orlando SANCHEZ, appellant.
Seymour W. James, Jr., New York, N.Y. (Lorraine Maddalo of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Lorraine Maddalo of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, COLLEEN D. DUFFY, and FRANCESCA E. CONNOLLY, JJ.
Appeal by the defendant from an order of the Supreme Court, Kings County (Sullivan, J.), dated July 30, 2012, 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.A downward departure from a sex offender's presumptive risk level generally is warranted only where “there exists ... [a] mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account” by the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA) Guidelines (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]; see People v. Fryer, 101 A.D.3d 835, 836, 955 N.Y.S.2d 407 ; People v. Bowens, 55 A.D.3d 809, 810, 866 N.Y.S.2d 291 ; People v. Taylor, 47 A.D.3d 907, 908, 850 N.Y.S.2d 195 ; People v. Hines, 24 A.D.3d 524, 525, 807 N.Y.S.2d 608 ). 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 SORA Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence” (People v. Fryer, 101 A.D.3d at 836, 955 N.Y.S.2d 407 ; see People v. Watson, 95 A.D.3d 978, 979, 944 N.Y.S.2d 584 ). “ ‘A sex offender's successful showing by a preponderance of the evidence of facts in support of an appropriate mitigating factor does not automatically result in the relief requested, but merely opens the door to the SORA court's exercise of its sound discretion upon further examination of all relevant circumstances' ” (People v. Harris, 93 A.D.3d 704, 706, 940 N.Y.S.2d 127, quoting People v. Wyatt, 89 A.D.3d 112, 127, 931 N.Y.S.2d 85 ).
To the extent that the defendant established facts that might warrant a downward departure from his presumptive risk level designation, upon examining all of the relevant circumstances, the Supreme Court providently exercised its discretion in denying the defendant's application for a downward departure (see People v. Fryer, 101 A.D.3d at 836, 955 N.Y.S.2d 407 ; cf. People v. Goossens, 75 A.D.3d 1171, 904 N.Y.S.2d 858 ).
Accordingly, the Supreme Court properly designated the defendant a level two sex offender.