People v. Ibarra

137 A.D.3d 1097, 26 N.Y.S.3d 867

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 23, 2016
• Docket: 2013-08723
• Status: Published

Opinion

Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated July 11, 2013, 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.

Contrary to the People’s contention, this appeal from an order designating the defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C [hereinafter SORA]) should not be dismissed on the ground that the defendant has been deported (see People v Shim, — AD3d —, 2016 NY Slip Op 01818 [2d Dept 2016]; People v Edwards, 117 AD3d 418 [2014]; People v Gudino-Sanchez, 116 AD3d 565 [2014]; People v Scott, 113 AD3d 491 [2014]).

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 AD3d 112, 128 [2011]; see People v Gillotti, 23 NY3d 841 [2014]). Here, the mitigating factors identified by the defendant were either adequately taken into account by the SORA Guidelines or did not warrant a downward departure from the presumptive risk level (see People v Gelin, 128 AD3d 657 [2015]).

Accordingly, the Supreme Court properly denied the defendant’s request for a downward departure from his presumptive designation as a level two sex offender.

Leventhal, J.P., Dickerson, Roman and Hinds-Radix, JJ., concur.