Opinion
2017-05442
05-15-2019
PEOPLE of State of New York, Respondent, v. Christopher STEPHENSBUSH, also known as Bris, Appellant.
Paul Skip Laisure, New York, N.Y. (Dina Zloczower of counsel), for appellant. John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Aurora Alvarez–Calderon of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Dina Zloczower of counsel), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Aurora Alvarez–Calderon of counsel), for respondent.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, JJ.
DECISION & ORDERAppeal by the defendant from an order of the Supreme Court, Queens County (Joseph A. Zayas, J.), dated April 11, 2017, 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.
The defendant was convicted, upon his plea of guilty, of sex trafficking. After a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA), at which the defendant sought a downward departure from his presumptive level three risk designation, the Supreme Court designated the defendant a level three sex offender.
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 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 Sex Offender Registration Act: 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, 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 circumstances identified by the defendant were adequately taken into account by the Guidelines, or were not proven by a preponderance of the evidence (see People v. Francis, 30 N.Y.3d 737, 743–751, 71 N.Y.S.3d 394, 94 N.E.3d 882 ; People v. Rocano–Quintuna, 149 A.D.3d 1114, 1115, 53 N.Y.S.3d 170 ; People v. Pendleton, 112 A.D.3d 600, 601, 975 N.Y.S.2d 908 ; People v. Robertson, 101 A.D.3d 1671, 1672, 956 N.Y.S.2d 378 ). Accordingly, we agree with the Supreme Court's determination to deny the defendant's application for a downward departure from his presumptive level and to designate him a level three sex offender.
DILLON, J.P., LEVENTHAL, HINDS–RADIX and DUFFY, JJ., concur.