Opinion
2014-07-9
PEOPLE of State of New York, respondent, v. Christopher WORTHAM, appellant.
Lynn W.L. Fahey, New York, N.Y. (Kendra L. Hutchinson of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Kendra L. Hutchinson of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel), for respondent.
Appeal by the defendant, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Chun, J.), dated October 26, 2011, as, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed insofar as appealed from, 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] 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, –––N.Y.3d ––––, ––– N.Y.S.2d ––––, ––– N.E.3d ––––, 2014 N.Y. Slip Op. 04117 [2014] ). Here, the Supreme Court properly determined that defendant was not entitled to a downward departure and, thus, properly designated him a level three sex offender ( see People v. Wood, 112 A.D.3d 602, 975 N.Y.S.2d 910;People v. Roldan, 111 A.D.3d 909, 910, 975 N.Y.S.2d 681). MASTRO, J.P., CHAMBERS, LOTT and ROMAN, JJ., concur.