Opinion
04-05-2017
PEOPLE of State of New York, respondent, v. Carl SYKES, appellant.
Seymour W. James, Jr., New York, NY (Lorraine Maddalo of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Joyce Adolfsen of counsel), for respondent.
Seymour W. James, Jr., New York, NY (Lorraine Maddalo of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Joyce Adolfsen of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Chun, J.), dated June 20, 2012, 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.
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 [Sex Offender Registration Act (hereinafter SORA): Risk Assessment] Guidelines [and Commentary]; 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 ; People v. Wallace, 144 A.D.3d 775, 40 N.Y.S.3d 561 ). If the defendant "surmounts the first two steps, the law permits a departure, but the court still has discretion to refuse to depart or to grant a departure" (People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see People v. Wyatt, 89 A.D.3d at 128, 931 N.Y.S.2d 85 ).
Here, the defendant failed to sustain his burden of proof in support of his request for a downward departure. The mitigating circumstances identified by the defendant either were adequately taken into account by the SORA Guidelines, or were not proven by a preponderance of the evidence (see People v. Rossano, 140 A.D.3d 1042, 1043, 35 N.Y.S.3d 364 ; People v. Sanchez, 138 A.D.3d 946, 947, 28 N.Y.S.3d 621 ; People v. Santiago, 137 A.D.3d 762, 765, 26 N.Y.S.3d 339 ). Accordingly, the Supreme Court properly denied his request for a downward departure.
RIVERA, J.P., HALL, ROMAN and BRATHWAITE NELSON, JJ., concur.