People v. Kohout

Appellate Division of the Supreme Court of New York

People v. Kohout

2016 NY Slip Op 8551, 145 A.D.3d 922, 44 N.Y.S.3d 470

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 21, 2016

Docket2013-01650

StatusPublished

Cited by17 cases

This text of 2016 NY Slip Op 8551 (People v. Kohout) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Kohout, 2016 NY Slip Op 8551, 145 A.D.3d 922, 44 N.Y.S.3d 470 (N.Y. Ct. App. 2016).

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Opinion

Appeal by the defendant from an order of the Supreme Court, Queens County (Margulis, J.), dated January 23, 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.

This appeal arises from the defendant’s risk level designation under New York’s Sex Offender Registration Act (see Correction Law § 168 et seq.; hereinafter SORA) following his conviction in federal court of a crime relating to his possession of child pornography. After a hearing, the Supreme Court assessed the defendant 95 points on the Risk Assessment Instrument, within the range for a presumptive designation as a level two sex offender. The defendant contends that the Supreme Court should have downwardly departed from the *923 presumptive risk level and found him to be a level one sex offender.

In seeking a downward departure from the presumptive risk level, a defendant first must identify 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 (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006]). The defendant must then prove the existence of that factor in the case by a preponderance of the evidence (see People v Gillotti, 23 NY3d 841, 861 [2014]; People v Marsh, 116 AD3d 680, 681-682 [2014]; People v Wyatt, 89 AD3d 112, 128 [2011]). If the defendant satisfies the burden of identifying and proving the existence of an appropriate mitigating factor, the court may then, as a matter of discretion, downwardly depart from the presumptive risk level. In determining whether to exercise that discretion in favor of a downward departure, the court must examine all the relevant circumstances in determining whether a designation at the presumptive risk level would result in an overassessment of the risk and danger of reoffense (see People v Gillotti, 23 NY3d at 861; People v Marsh, 116 AD3d at 682; People v Wyatt, 89 AD3d at 128).

Here, we conclude that the Supreme Court providently exercised its discretion in designating the defendant a level two sex offender under the SORA Guidelines and in declining to downwardly depart from the presumptive risk level (see People v Rossano, 140 AD3d 1042, 1043 [2016]).

Balkin, J.R, Austin, Sgroi and LaSalle, JJ., concur.

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Appeal by the defendant from an order of the Supreme Court, Queens County (Margulis, J.), dated January 23, 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.

This appeal arises from the defendant’s risk level designation under New York’s Sex Offender Registration Act (see Correction Law § 168 et seq.; hereinafter SORA) following his conviction in federal court of a crime relating to his possession of child pornography. After a hearing, the Supreme Court assessed the defendant 95 points on the Risk Assessment Instrument, within the range for a presumptive designation as a level two sex offender. The defendant contends that the Supreme Court should have downwardly departed from the *923 presumptive risk level and found him to be a level one sex offender.

In seeking a downward departure from the presumptive risk level, a defendant first must identify 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 (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006]). The defendant must then prove the existence of that factor in the case by a preponderance of the evidence (see People v Gillotti, 23 NY3d 841, 861 [2014]; People v Marsh, 116 AD3d 680, 681-682 [2014]; People v Wyatt, 89 AD3d 112, 128 [2011]). If the defendant satisfies the burden of identifying and proving the existence of an appropriate mitigating factor, the court may then, as a matter of discretion, downwardly depart from the presumptive risk level. In determining whether to exercise that discretion in favor of a downward departure, the court must examine all the relevant circumstances in determining whether a designation at the presumptive risk level would result in an overassessment of the risk and danger of reoffense (see People v Gillotti, 23 NY3d at 861; People v Marsh, 116 AD3d at 682; People v Wyatt, 89 AD3d at 128).

Here, we conclude that the Supreme Court providently exercised its discretion in designating the defendant a level two sex offender under the SORA Guidelines and in declining to downwardly depart from the presumptive risk level (see People v Rossano, 140 AD3d 1042, 1043 [2016]).

Balkin, J.R, Austin, Sgroi and LaSalle, JJ., concur.

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Bluebook (online)

2016 NY Slip Op 8551, 145 A.D.3d 922, 44 N.Y.S.3d 470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kohout-nyappdiv-2016.

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