People v. Grabowski

142 A.D.3d 697, 36 N.Y.S.3d 922

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 31, 2016
• Docket: 2015-04747
• Status: Published

Opinion

— Appeal by the defendant from an order of the Supreme Court, Kings County (Foley, J.), dated May 11, 2015, 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.

In determining a defendant’s risk level pursuant to the Sex Offender Registration Act (Correction Law art 6-C), a downward departure from a sex offender’s presumptive risk level generally is warranted only where there exists a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary (2006) (hereinafter the Guidelines) (see People v Gillotti, 23 NY3d 841, 861 [2014]; People v Sanchez, 138 AD3d 946 [2016]; People v Azeez, 138 AD3d 945 [2016]).

Here, nearly all of the mitigating circumstances identified by the defendant were adequately taken into account by the Guidelines (see People v DeDona, 102 AD3d 58, 71 [2012]; People v Riverso, 96 AD3d 1533, 1534 [2012]). Moreover, to the extent the defendant established certain facts in support of mitigating factors not adequately taken into account by the Guidelines, the Supreme Court providently exercised its discretion in denying the defendant’s request for a downward departure, and thus, properly designated him a level two sex offender (see People v Gillotti, 23 NY3d at 861).

Chambers, J.P., Dickerson, Duffy and Brathwaite Nelson, JJ., concur.