People v. Leshchenko

127 A.D.3d 833, 4 N.Y.S.3d 903

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 8, 2015
• Docket: 2013-11105
• Status: Published

Opinion

Appeal by the defendant from an order of the Supreme Court, Kings County (Mangano, Jr., J.), dated December 3, 2013, 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 determining a defendant’s risk level pursuant to the Sex Offender Registration Act (Correction Law article 6-C [hereinafter SORA]), “[a] downward departure from a sex offender’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” (Pe ople v Watson, 95 AD3d 978, 979 [2012]; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; People v Gillotti, 23 NY3d 841, 861 [2014]; People v Wyatt, 89 AD3d 112, 128 [2011]).

Here, contrary to the defendant’s contention, he failed to establish that his expected deportation was, “ ‘as a matter of law, an appropriate mitigating factor’ ” (People v Barrett, 123 AD3d 783 [2014], quoting People v Wyatt, 89 AD3d at 128; see People v Pavia, 121 AD3d 960 [2014]; People v Romero, 113 AD3d 605 [2014]; People v Kachatov, 106 AD3d 973 [2013]). Accordingly, the defendant was not entitled to a downward departure from the presumptive risk level, and the defendant was properly designated a level three sex offender.

Skelos, J.P, Leventhal, Cohen and Duffy, JJ., concur.