People v. Sivells

83 A.D.3d 1027, 921 N.Y.S.2d 530

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 26, 2011
• Status: Published

Opinion

Appeal by the defendant from an order of the Supreme Court, Kings County (Firetog, J.), dated November 16, 2009, which, after a hearing, designated him a level three sex offender and a sexually violent offender pursuant to Correction Law article 6-C.

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

The Supreme Court providently exercised its discretion in denying the defendant’s application for a downward departure from his presumptive risk level status. The party seeking a downward departure from the presumptive risk level has the burden of demonstrating that there are mitigating factors “of a kind, or to a degree, that [are] otherwise not adequately taken into account” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]) by the guidelines (see People v Mendez, 79 AD3d 834 [2010], lv denied 16 NY3d 707 [2011] ; People v Johnson, 77 AD3d 897 [2010], lv denied 16 NY3d 704 [2011]; People v Maiello, 32 AD3d 463 [2006]). Here, the defendant failed to demonstrate that there existed mitigating factors of a kind or to a degree not otherwise taken into account by the guidelines. Covello, J.P., Eng, Hall and Roman, JJ., concur.