People v. White

2016 NY Slip Op 7633, 144 A.D.3d 881, 40 N.Y.S.3d 786

Opinion

Appeal by the defendant from an order of the Supreme Court, Queens County (Koenderman, J.), dated November 19, 2012, 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.

A court determining a defendant’s risk level under the Sex Offender Registration Act (see Correction Law art 6-C; hereinafter SORA), is not permitted to downwardly depart from the presumptive risk level unless the defendant first identifies and proves by a preponderance of the evidence the facts in support of “a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines” (People v Lathan, 129 AD3d 686, 686-687 [2015]; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). Here, the defendant failed to prove the existence of such a mitigating factor (see People v Jordan, 142 AD3d 596, 596 [2016]). Accordingly, the Supreme Court correctly denied his request for a downward departure from his presumptive risk level (see id.).

Balkin, J.P., Hall, Sgroi and Barros, JJ., concur.