Opinion
2016–12149
05-06-2020
PEOPLE of State of New York, Respondent, v. Ekins WORRELL, Appellant.
Janet E. Sabel, New York, N.Y. (Rachel L. Pecker of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Josette Simmons of counsel), for respondent.
Janet E. Sabel, New York, N.Y. (Rachel L. Pecker of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Josette Simmons of counsel), for respondent.
REINALDO E. RIVERA, J.P., JOSEPH J. MALTESE, BETSY BARROS, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
ORDERED that the order is affirmed, without costs or disbursements.
The defendant was convicted, upon his plea of guilty, of promoting a sexual performance by a child (two counts). After a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA), the Supreme Court designated the defendant a level two sex offender.
Contrary to the defendant's contention, the Supreme Court properly assessed 30 points under risk factor 3 (number of victims) and 20 points under risk factor 7 (relationship with victim) based upon the evidence that he possessed a large number of images and videos depicting various children who were strangers to him (see People v. Gillotti , 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Johnson , 11 N.Y.3d 416, 872 N.Y.S.2d 379, 900 N.E.2d 930 ).
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 at 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 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 defendant's contention that certain factors warrant a downward departure from his presumptive risk level is unpreserved for appellate review because he did not raise those grounds at the SORA hearing (see People v. Bigelow , 175 A.D.3d 1443, 1444, 107 N.Y.S.3d 406 ; People v. Mosqueda , 172 A.D.3d 1412, 1413, 99 N.Y.S.3d 636 ; People v. Cuspert , 172 A.D.3d 1255, 1256, 98 N.Y.S.3d 852 ). In any event, even considering the unpreserved factors with those preserved, the defendant was not entitled to a downward departure (see People v. Bigelow , 175 A.D.3d at 1444, 107 N.Y.S.3d 406 ; People v. Cuspert , 172 A.D.3d at 1256, 98 N.Y.S.3d 852 ). Accordingly, we agree with the Supreme Court's determination to deny the defendant's application for a downward departure from his presumptive level two risk designation.
RIVERA, J.P., MALTESE, BARROS, BRATHWAITE NELSON and IANNACCI, JJ., concur.