Opinion
2017–02503
01-24-2018
PEOPLE of State of New York, Respondent, v. John TROMBA, Appellant.
Paul Skip Laisure, New York, N.Y. (Lauren E. Jones of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel; Aleena R. Peerzada on the brief), for respondent.
Paul Skip Laisure, New York, N.Y. (Lauren E. Jones of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel; Aleena R. Peerzada on the brief), for respondent.
CHERYL E. CHAMBERS, J.P., L. PRISCILLA HALL, COLLEEN D. DUFFY, BETSY BARROS, JJ.
DECISION & ORDER Appeal by the defendant from an order of the Supreme Court, Kings County (Michael A. Gary, J.), dated February 22, 2017, 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.
At a hearing pursuant to the Sex Offender Registration Act (see Correction Law § 168 et seq. ; hereinafter SORA), the defendant was assessed 80 points under the Risk Assessment Instrument, placing him near the bottom of the range for a presumptive level two designation. The defendant contends that the Supreme Court improvidently exercised its discretion in denying his request for a downward departure from the presumptive risk level.
A court determining a defendant's risk level under SORA may not downwardly depart from the presumptive risk level unless the defendant first identifies, and then proves by a preponderance of the evidence the facts in support of, "a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines" ( People v. Lathan, 129 A.D.3d 686, 686–687, 8 N.Y.S.3d 921 [internal quotation marks omitted]; see People v. Warren, 152 A.D.3d 551, 551, 54 N.Y.S.3d 871 ; SORA: Risk Assessment Guidelines and Commentary at 4 [2006] ). Once a defendant seeking a downward departure identifies and proves the mitigating factor by a preponderance of the evidence, 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 danger presented by the defendant and the risk the defendant will reoffend (see People v. Gillotti, 23 N.Y.3d 841, 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 ).
Under the circumstances of this case, a downward departure on the basis of the defendant's age was not warranted (see People v. Shelton, 126 A.D.3d 959, 960, 6 N.Y.S.3d 121 ; People v. Torres, 124 A.D.3d 744, 746, 998 N.Y.S.2d 464 ; People v. Lucius, 122 A.D.3d 819, 819–820, 996 N.Y.S.2d 659 ). Moreover, none of the other factors put forward by the defendant, either singly, in combination with each other, or in combination with the defendant's age, showed that the presumptive risk level overassessed the danger presented by the defendant and the risk of reoffense (see People v. Shelton, 126 A.D.3d at 960, 6 N.Y.S.3d 121 ; People v. Torres, 124 A.D.3d at 746, 998 N.Y.S.2d 464 ; People v. Cabrera, 91 A.D.3d 479, 480, 937 N.Y.S.2d 14 ). Accordingly, the Supreme Court providently exercised its discretion in declining to downwardly depart from the presumptive risk level.
CHAMBERS, J.P., HALL, DUFFY and BARROS, JJ., concur.