People v. Wortham

Appellate Division of the Supreme Court of New York

People v. Wortham

119 A.D.3d 666, 989 N.Y.S.2d 618

Appellate Division of the Supreme Court of the State of New York·Decided July 9, 2014·No. 2011-10032·Published·Cited by 8 cases

Opinion

Appeal by the defendant, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Chun, J.), dated October 26, 2011, as, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

A defendant seeking a downward departure from the presumptive risk level 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 [Sex Offender Registration Act] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence” (Pe ople v Wyatt, 89 AD3d 112, 128 [2011]; see People v Gillotti, 23 NY3d 841 [2014]). Here, the Supreme Court properly determined that defendant was not entitled to a downward departure and, thus, properly designated him a level three sex offender (see People v Wood, 112 AD3d 602 [2013]; People v Roldan, 111 AD3d 909, 910 [2013]).

Mastro, J.E, Chambers, Lott and Roman, JJ., concur.

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Appeal by the defendant, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Chun, J.), dated October 26, 2011, as, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

A defendant seeking a downward departure from the presumptive risk level 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 [Sex Offender Registration Act] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence” (Pe ople v Wyatt, 89 AD3d 112, 128 [2011]; see People v Gillotti, 23 NY3d 841 [2014]). Here, the Supreme Court properly determined that defendant was not entitled to a downward departure and, thus, properly designated him a level three sex offender (see People v Wood, 112 AD3d 602 [2013]; People v Roldan, 111 AD3d 909, 910 [2013]).

Mastro, J.E, Chambers, Lott and Roman, JJ., concur.

People v. Wortham, 119 A.D.3d 666, 989 N.Y.S.2d 618 (N.Y. Ct. App. 2014).

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Opinion

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