Opinion
366 KA 21-01087
04-22-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JEREMIAH SIMMONS, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, WINSLOW, AND BANNISTER, JJ.
Appeal from an order of the Supreme Court, Monroe County (Vincent M. Dinolfo, J.), entered July 4, 2021. The order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that remittal is required inasmuch as Supreme Court failed to consider his request for a downward departure from his presumptive risk level. Although we agree with defendant that the court failed to consider his request, we conclude that "[the] omission by the court does not require remittal because the record is sufficient for us to make our own findings of fact and conclusions of law with respect to defendant's request" (People v Augsbury, 156 A.D.3d 1487, 1487 [4th Dept 2017], lv denied 31 N.Y.3d 903 [2018]; see People v Hamm, 185 A.D.3d 1493, 1494 [4th Dept 2020], lv denied 35 N.Y.3d 916 [2020]; cf. People v Davis, 145 A.D.3d 1625, 1626 [4th Dept 2016], lv dismissed 29 N.Y.3d 976 [2017]). Even assuming, arguendo, that defendant identified a mitigating factor that was of a kind or to a degree not adequately taken into account by the guidelines (see People v Gillotti, 23 N.Y.3d 841, 861 [2014]), however, we conclude that defendant did not "adduce[] sufficient evidence to meet [his] burden of proof in establishing that the alleged... mitigating circumstance[] actually exist[ed]" (id.; see Hamm, 185 A.D.3d at 1494).