Opinion
01-18-2017
PEOPLE of State of New York, respondent, v. Herbert SIMMONS, appellant.
Seymour W. James, Jr., New York, NY (Nancy E. Little of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and William H. Branigan of counsel; J. Raymond Mechmann III on the brief), for respondent.
Seymour W. James, Jr., New York, NY (Nancy E. Little of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and William H. Branigan of counsel; J. Raymond Mechmann III on the brief), for respondent.
LEONARD B. AUSTIN, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.
Appeal by the defendant from an order of the Supreme Court, Queens County (Lopez, J.), dated October 8, 2014, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
Contrary to the defendant's contention, the Supreme Court properly assessed points to the defendant based on his youthful offender adjudication (see People v. Francis, 137 A.D.3d 91, 97, 25 N.Y.S.3d 221, lv. granted 27 N.Y.3d 908, 2016 WL 3198765 ). The Risk Assessment Guidelines developed by the Board of Examiners of Sex Offenders (hereinafter the Board) "expressly provide that youthful offender adjudications are to be treated as ‘crimes' for purposes of assessing the defendant's likelihood of re-offending and danger to public safety" (People v. Moore, 1 A.D.3d 421, 421, 766 N.Y.S.2d 700 ; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 6–7 [2006] [hereinafter SORA Guidelines]; People v. Francis, 137 A.D.3d at 97, 25 N.Y.S.3d 221 ).
The Supreme Court did not err in denying the defendant's request for a downward departure to risk level two. 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 SORA Guidelines (SORA Guidelines at 4; see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Fryer, 101 A.D.3d 835, 836, 955 N.Y.S.2d 407 ). 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 ). Here, the defendant failed to identify any mitigating factor that was not adequately taken into account by the SORA Guidelines (see People v. Game, 131 A.D.3d 460, 461, 13 N.Y.S.3d 900 ; People v. Coleman, 122 A.D.3d 599, 600, 995 N.Y.S.2d 223 ; People v. Wyatt, 89 A.D.3d 112, 131, 931 N.Y.S.2d 85 ).
The defendant's remaining contention is unpreserved for appellate review and, in any event, without merit (see People v. Fryer, 101 A.D.3d at 835, 955 N.Y.S.2d 407 ).
Accordingly, the Supreme Court properly designated the defendant a level three sex offender.