People v. Jordan

142 A.D.3d 596, 36 N.Y.S.3d 608

Opinion

— Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated September 23, 2014, 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.

A court determining a defendant’s risk level under the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]) is not permitted to downwardly depart from the presumptive risk level unless the defendant first identifies and proves the presence of “a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines” (People v Lathan, 129 AD3d 686, 687 [2015] [internal quotation mark omitted]; see SORA: Risk Assessment Guidelines and Commentary at 4 [2006]). Here, the defendant failed to prove the existence of such a mitigating factor (see People v Lathan, 129 AD3d at 687; People v Ciudadreal, 125 AD3d 950, 950 [2015]). Accordingly, the Supreme Court correctly denied his request for a downward departure from his presumptive risk level (see People v Lathan, 129 AD3d at 687).

Balkin, J.P., Roman, Cohen and Connolly, JJ., concur.