Opinion
2013–06708
12-05-2018
PEOPLE of State of New York, Respondent, v. Arturo SORIANO, Appellant.
The Legal Aid Society, New York, N.Y. (Amy Donner of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Jonathan K. Yi of counsel), for respondent.
The Legal Aid Society, New York, N.Y. (Amy Donner of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Jonathan K. Yi of counsel), for respondent.
RUTH C. BALKIN, J.P., SANDRA L. SGROI, BETSY BARROS, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Queens County (John B. Latella, J.), dated June 24, 2013, 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.
The defendant appeals from an order, made after a hearing, designating him a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law article 6–C; hereinafter SORA). The defendant contends that the Supreme Court should have granted his application for a downward departure from his presumptive risk level.
A defendant seeking a downward departure from the presumptive risk level 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. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85 ; see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see also SORA: Risk Assessment Guidelines and Commentary at 4 [2006] ). 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 over-assessment of the defendant's dangerousness and risk of sexual recidivism (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Champagne, 140 A.D.3d 719, 720, 31 N.Y.S.3d 218 ).
Here, the defendant failed to establish that his expected deportation was "as a matter of law, an appropriate mitigating factor" ( People v. Wyatt, 89 A.D.3d at 128, 931 N.Y.S.2d 85 ; see People v. Barrett, 123 A.D.3d 783, 784, 996 N.Y.S.2d 547 ; People v. Pavia, 121 A.D.3d 960, 993 N.Y.S.2d 782 ). Further, the defendant's contentions that certain other factors warrant a downward departure from his presumptive risk level are unpreserved for appellate review because he did not raise these factors at the SORA hearing (see People v. Joseph, 163 A.D.3d 594, 594, 76 N.Y.S.3d 829 ; People v. Figueroa, 138 A.D.3d 708, 709, 27 N.Y.S.3d 885 ), and in any event, are without merit.
Accordingly, we agree with the Supreme Court's determination designating the defendant a level two sex offender pursuant to Correction Law article 6–C.
BALKIN, J.P., SGROI, BARROS and CHRISTOPHER, JJ., concur.