PEOPLE v. GRIFFIN (2020)

MEMORANDUM AND ORDER

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

Memorandum: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq.), defendant contends that Supreme Court erred in refusing to grant him a downward departure from the presumptive risk level. Even assuming, arguendo, that defendant's contention is preserved despite the fact that he never expressly asked for a downward departure (cf. People v. Wright, 158 A.D.3d 1062, 1063, 67 N.Y.S.3d 885 [4th Dept. 2018], lv denied 31 N.Y.3d 905, 2018 WL 2014675 [2018]; People v. Williams, 122 A.D.3d 1378, 1379, 996 N.Y.S.2d 455 [4th Dept. 2014]), we conclude that defendant failed to establish the existence of a mitigating factor by the requisite “preponderance of the evidence” (People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).

“Although ‘advanced age’ may constitute a basis for a downward departure[,] ․ defendant failed to demonstrate that his age at the time of the SORA hearing, [55] years old, would, in and of itself, reduce his risk of reoffense” (People v. Munoz, 155 A.D.3d 1068, 1069, 64 N.Y.S.3d 594 [2d Dept. 2017], lv denied 30 N.Y.3d 912, 2018 WL 894415 [2018]; see People v. Johnson, 120 A.D.3d 1542, 1542, 993 N.Y.S.2d 208 [4th Dept. 2014], lv denied 24 N.Y.3d 910, 2014 WL 6609035 [2014]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4-5 [2006] ). Defendant “failed to present any expert testimony or other evidence that would have permitted the SORA court to find that his [age alone or combined with the length of his supervision] decrease[d] the likelihood that he will reoffend” (People v. Rodriguez, 145 A.D.3d 489, 490, 44 N.Y.S.3d 16 [1st Dept. 2016], lv denied 28 N.Y.3d 916, 2017 WL 628943 [2017]; see People v. Santiago, 137 A.D.3d 762, 764-765, 26 N.Y.S.3d 339 [2d Dept. 2016], lv denied 27 N.Y.3d 907, 2016 WL 3151966 [2016]).