People v. Delvalle

100 A.D.3d 726, 953 N.Y.S.2d 873

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 14, 2012
• Status: Published

Opinion

Appeal by the defendant from an order of the Supreme Court, Kings County (Gary, J.), dated May 6, 2011, 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.

The defendant contends that the Supreme Court erred in denying his request for a downward departure from a presumptive risk level three designation to a risk level one designation pursuant to the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]) following a risk assessment hearing. However, although the defendant identified a mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the SORA Risk Assessment Guidelines and Commentary, and established the facts in support of that mitigating factor by a preponderance of the evidence, the Supreme Court did not improvidently exercise its discretion in downwardly departing from the defendant’s presumptive risk level three designation to a level two designation, rather than to a level one designation (see generally People v Wyatt, 89 AD3d 112 [2011]). Eng, RJ., Skelos, Lott and Cohen, JJ., concur.