Opinion
10-25-2017
PEOPLE of State of New York, Respondent, v. Abraham SANTIAGO, Appellant.
Seymour W. James, Jr., New York, NY (Anita Aboagye–Agyeman of Counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, William H. Branigan, and Amy E. Markel of Counsel), for respondent.
Seymour W. James, Jr., New York, NY (Anita Aboagye–Agyeman of Counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, William H. Branigan, and Amy E. Markel of Counsel), for respondent.
ORDERED that the order is affirmed, without costs or disbursements.
Contrary to the defendant's contention, the Supreme Court did not improvidently exercise its discretion in denying his application for a downward departure from the presumptive risk assessment level under the Sex Offender Registration Act (Correction Law article 6–C; hereinafter SORA). In determining a defendant's risk level, a downward departure from the presumptive risk level generally is warranted only if there exists a mitigating circumstance "as a matter of law, of a kind or to a degree not adequately taken into account by the [SORA] guidelines" ( People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; People v. Watson, 95 A.D.3d 978, 979, 944 N.Y.S.2d 584 ).
The defendant's satisfactory conduct during his incarceration and his completion of sex offender treatment were facts adequately taken into account under the SORA guidelines, as the defendant was assessed zero points both for risk factors 12 (acceptance of responsibility) and 13 (conduct while confined/supervised) under the risk assessment instrument (see People v. Alexander, 144 A.D.3d 1008, 41 N.Y.S.3d 746 ; People v. DeDona, 102 A.D.3d 58, 71, 954 N.Y.S.2d 541 ; People v. Riverso, 96 A.D.3d 1533, 1534, 947 N.Y.S.2d 250 ; People v. Walker, 47 A.D.3d 692, 694, 850 N.Y.S.2d 494 ). The defendant has otherwise failed to set forth any mitigating factors warranting a downward departure. Contrary to his contention, he failed to establish that his deportation was, "as a matter of law, an appropriate mitigating factor" ( People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85 ; see People v. Jara, 150 A.D.3d 1159, 52 N.Y.S.3d 663 ; People v. Garcia, 144 A.D.3d 650, 651, 39 N.Y.S.3d 821 ; People v. Rubi, 132 A.D.3d 650, 17 N.Y.S.3d 314 ; People v. Leshchenko, 127 A.D.3d 833, 4 N.Y.S.3d 903 ).
LEVENTHAL, J.P., BARROS, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.