People v. McCurdy

Appellate Division of the Supreme Court of New York

People v. McCurdy

121 A.D.3d 875, 994 N.Y.S.2d 403

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

DecidedOctober 15, 2014

Docket2011-03913

StatusPublished

Cited by5 cases

This text of 121 A.D.3d 875 (People v. McCurdy) 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. McCurdy, 121 A.D.3d 875, 994 N.Y.S.2d 403 (N.Y. Ct. App. 2014).

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Opinion

Appeal by the defendant from an order of the Supreme Court, Kings County (J. Goldberg, J.), dated April 12, 2011, which, after a hearing, designated him a level three sexually violent 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 (see Correction Law art 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” (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]).

The defendant contends that he was entitled to a downward *876 departure from the presumptive risk level because his motive for committing the underlying sex crime was based in revenge, and not sexual gratification. However, the defendant failed to show that his alleged motive for committing the underlying sex crime was, “as a matter of law, an appropriate mitigating factor” (id.; see People v Knox, 12 NY3d 60, 70 [2009]; People v Romero, 113 AD3d 605 [2014]). Accordingly, the defendant was not entitled to a downward departure from the presumptive risk level.

Rivera, J.E, Hall, Miller and Duffy, JJ., concur.

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Appeal by the defendant from an order of the Supreme Court, Kings County (J. Goldberg, J.), dated April 12, 2011, which, after a hearing, designated him a level three sexually violent 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 (see Correction Law art 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” (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]).

The defendant contends that he was entitled to a downward *876 departure from the presumptive risk level because his motive for committing the underlying sex crime was based in revenge, and not sexual gratification. However, the defendant failed to show that his alleged motive for committing the underlying sex crime was, “as a matter of law, an appropriate mitigating factor” (id.; see People v Knox, 12 NY3d 60, 70 [2009]; People v Romero, 113 AD3d 605 [2014]). Accordingly, the defendant was not entitled to a downward departure from the presumptive risk level.

Rivera, J.E, Hall, Miller and Duffy, JJ., concur.

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Bluebook (online)

121 A.D.3d 875, 994 N.Y.S.2d 403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mccurdy-nyappdiv-2014.

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