PEOPLE v. UERKVITZ (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  In this proceeding pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant appeals from an order, inter alia, classifying him as a level three risk after his conviction of a federal sex offense arising from his possession and attempted possession of child pornography (see 18 USC § 2252A [a][5][B];  [b][2] ).  Contrary to defendant's contention, County Court did not abuse its discretion in denying his request for a downward departure to a level two risk.  We conclude that defendant “failed to establish by a preponderance of the evidence the existence of mitigating factors not adequately taken into account by the guidelines” (People v. Lewis, 156 A.D.3d 1431, 1432, 67 N.Y.S.3d 739 [4th Dept. 2017], lv denied 31 N.Y.3d 904, 2018 WL 1957439 [2018];  see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ).

Moreover, even assuming, arguendo, that defendant established facts that might warrant a downward departure from his presumptive risk level, we conclude upon examining all of the relevant circumstances, including defendant's previous conviction for sexual abuse in the first degree (Penal Law § 130.65[3] ) and the fact that defendant committed the present offense while under probation supervision for that prior offense, that the court providently exercised its discretion in denying defendant's request for a downward departure (see People v. Villafane, 168 A.D.3d 408, 408, 88 N.Y.S.3d 880 [1st Dept. 2019];  People v. Iverson, 90 A.D.3d 1561, 1562, 936 N.Y.S.2d 408 [4th Dept. 2011], lv. denied 18 N.Y.3d 811, 2012 WL 1432180 [2012];  see also People v. Smith, 122 A.D.3d 1325, 1326, 995 N.Y.S.2d 890 [4th Dept. 2014] ).