People v. Lathan

129 A.D.3d 686, 8 N.Y.S.3d 921

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 3, 2015
• Docket: 2014-08188
• Status: Published

Opinion

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated August 7, 2014, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

In the determination of a defendant’s risk level pursuant to the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]), “[a] downward departure from a sex of-fen der’s presumptive risk level generally is only warranted where there exists a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines” (People v Watson, 95 AD3d 978, 979 [2012]; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). A defendant seeking a downward departure 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 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, 861 [2014]).

Here, the defendant failed to establish the existence of any mitigating factors warranting a downward departure (see People v Ciudadreal, 125 AD3d 950, 950 [2015]; People v Goodwin, 49 AD3d 619, 620-621 [2008]; see also People v Beers, 124 AD3d 741, 741 [2015]; People v Valdez, 123 AD3d 785, 786 [2014]). Accordingly, contrary to the defendant’s contention, the County Court correctly denied his application for a downward departure from his presumptive risk level (see People v Valdez, 123 AD3d at 786).

Mastro, J.R, Balkin, Sgroi and Miller, JJ., concur.