People v. Gant

92 A.D.3d 854, 938 N.Y.2d 812

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 21, 2012
• Status: Published

Opinion

The defendant contends that the Supreme Court erred in denying his application for a downward departure from his presumptive level three risk assessment. “However, a court may not downwardly depart from the presumptive risk level unless it concludes that there exists a mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” (People v Martin, 90 AD3d 728, 728 [2011]; see People v Bowden, 88 AD3d 972, 972 [2011], lv denied 18 NY3d 806 [2012]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]).

Here, the defendant failed to demonstrate, by a preponderance of the evidence, the existence of a mitigating factor of a kind, or to a degree, that was not adequately taken into account by the risk assessment guidelines and that would justify a downward departure (see People v Martin, 90 AD3d 728 [2011]; People v Wyatt, 89 AD3d 112, 127-128 [2011], lv denied 18 NY3d 803 [2012]; People v Bowden, 88 AD3d at 972). Accordingly, the Supreme Court properly denied the defendant’s application for a downward departure from his presumptive risk level status. Balkin, J.E, Eng, Hall and Sgroi, JJ, concur.