Opinion
No. 368 KA 20-00916
07-01-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. MICHAEL STEVENS, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS 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 Monroe County Court (Stephen T. Miller, A.J.), entered June 1, 2020. 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 ([SORA] Correction Law § 168 et seq.), defendant contends that County Court erred in refusing to grant him a downward departure from his presumptive risk level. We affirm.
Contrary to defendant's contention, the mere absence of aggravating factors does not warrant a downward departure (see generally People v Gillotti, 23 N.Y.3d 841, 853, 861 [2014]). Rather, a defendant seeking a downward departure bears the burden of establishing by a preponderance of the evidence the existence of an appropriate mitigating factor-i.e., "a factor which tends to establish a lower likelihood of reoffense or danger to the community" (People v Jackson, 114 A.D.3d 739, 739 [2d Dept 2014], lv denied 23 N.Y.3d 903 [2014]; see People v Johnson, 120 A.D.3d 1542, 1542 [4th Dept 2014], lv denied 24 N.Y.3d 910 [2014])-that is of a kind or to a degree not adequately taken into account by the risk assessment guidelines (see Gillotti, 23 N.Y.3d at 853; People v Uerkvitz, 171 A.D.3d 1491, 1492 [4th Dept 2019], lv denied 33 N.Y.3d 912 [2019]; People v Wooten, 136 A.D.3d 1305, 1306 [4th Dept 2016]). Here, even assuming, arguendo, that defendant is correct in asserting that no aggravating factors were present, we conclude that defendant failed to identify or prove the existence of an appropriate mitigating factor in support of his request for a downward departure at the SORA hearing (see People v Kemp, 163 A.D.3d 1339, 1341-1342 [3d Dept 2018], lv denied 32 N.Y.3d 919 [2019]). The court thus lacked the discretion to order a downward departure (see People v Braxdton, 166 A.D.3d 665, 666 [2d Dept 2018], lv denied 32 N.Y.3d 917 [2019]; People v Johnson, 120 A.D.3d 1542, 1542 [4th Dept 2014], lv denied 24 N.Y.3d 910 [2014]; see also People v Mann, 177 A.D.3d 1319, 1320 [4th Dept 2019], lv denied 35 N.Y.3d 902 [2020]).
Moreover, even if defendant met his burden on the first two steps of the analysis (see generally Gillotti, 23 N.Y.3d at 861), we conclude that the totality of the circumstances does not warrant a downward departure inasmuch as defendant's presumptive risk level does not represent an overassessment of his dangerousness and risk of sexual recidivism (see People v Taylor, 198 A.D.3d 1369, 1370 [4th Dept 2021], lv denied 38 N.Y.3d 905 [2022]; People v Bernecky, 161 A.D.3d 1540, 1541 [4th Dept 2018], lv denied 32 N.Y.3d 901 [2018]; see generally Gillotti, 23 N.Y.3d at 861).