People v. Wilson

2017 NY Slip Op 8704, 156 A.D.3d 734, 64 N.Y.S.3d 902, 2017 WL 6347058

Opinion

Appeal by the defendant from an order of the Supreme Court, Kings County (Murphy, J.), dated August 18, 2015, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.

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

The Supreme Court properly rejected the defendant’s request for a downward departure from the presumptive risk level. A court determining a defendant’s risk level under the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]) may not 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 [Sex Offender Registration Act: Risk Assessment Guidelines and Commentary (2006) (hereinafter Guidelines)]” (People v Lathan, 129 AD3d 686, 687 [2015] [internal quotation marks omitted]; see People v Warren, 152 AD3d 551, 551 [2017]; Guidelines at 4). Here, the defendant failed to identify a proper mitigating factor (see People v Warren, 152 AD3d at 551; People v Rodriguez, 145 AD3d 489, 490 [2016]; People v Roldan, 140 AD3d 411, 412 [2016]). Accordingly, there was no basis for a downward departure, and the court properly designated the defendant a level two sex offender (see People v Warren, 152 AD3d at 551).

Balkin, J.P., Leventhal, Austin and Iannacci, JJ., concur.