Opinion
No. 2019-00976
01-19-2022
People of State of New York, respondent, v. Alexander Sanchez-Jimenez, appellant.
Janet E. Sabel, New York, NY (Svetlana M. Kornfeind of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Roni C. Piplani of counsel; Jacob Aboodi on the brief), for respondent.
Submitted - December 6, 2021
D68345 Y/htr
Janet E. Sabel, New York, NY (Svetlana M. Kornfeind of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Roni C. Piplani of counsel; Jacob Aboodi on the brief), for respondent.
FRANCESCA E. CONNOLLY, J.P. SYLVIA O. HINDS-RADIX SHERI S. ROMAN DEBORAH A. DOWLING, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Queens County (Suzanne Melendez, J.), dated December 20, 2018, 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.
In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA), the Supreme Court assessed the defendant 80 points on the risk assessment instrument, within the range for a presumptive designation as a level two sex offender. The court denied the defendant's request for a downward departure from his presumptive risk level and designated him a level two sex offender. On appeal, the defendant challenges the denial of his request for a downward departure from his presumptive risk level.
A defendant seeking a downward departure from his or her presumptive risk level has the initial burden of "(1) identifying, as a matter of law, an appropriate mitigating favor, 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; see People v Gillotti, 23 N.Y.3d 841, 861; see also SORA: Risk
Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]). If the defendant makes that twofold showing, the 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; People v Champagne, 140 A.D.3d 719, 720).
In this case, the defendant either failed to establish by a preponderance of the evidence the grounds asserted for a downward departure from his presumptive risk level (see People v Mitchell 196 A.D.3d 516, 518; People v Nicholson, 195 A.D.3d 758; People v Bigelow, 175 A.D.3d 1443; People v Santiago, 137 A.D.3d 762, 765), or cited factors already taken into account by the Guidelines (see People v Peoples 189 A.D.3d 1282, 1283; People v Rivas, 185 A.D.3d 740, 741; People v Santiago, 137 A.D.3d at 764). Accordingly, the Supreme Court properly denied the defendant's request for a downward departure from his presumptive risk level, and designated him a level two sex offender.
CONNOLLY, J.P., HINDS-RADIX, ROMAN and DOWLING, JJ., concur.