PEOPLE v. SIMMONS (2022)

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 two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that remittal is required inasmuch as Supreme Court failed to consider his request for a downward departure from his presumptive risk level. Although we agree with defendant that the court failed to consider his request, we conclude that “[the] omission by the court does not require remittal because the record is sufficient for us to make our own findings of fact and conclusions of law with respect to defendant's request” (People v. Augsbury, 156 A.D.3d 1487, 1487, 67 N.Y.S.3d 367 [4th Dept. 2017], lv denied 31 N.Y.3d 903, 2018 WL 1527815 [2018]; see People v. Hamm, 185 A.D.3d 1493, 1494, 125 N.Y.S.3d 913 [4th Dept. 2020], lv denied 35 N.Y.3d 916, 2020 WL 6192118 [2020]; cf. People v. Davis, 145 A.D.3d 1625, 1626, 44 N.Y.S.3d 837 [4th Dept. 2016], lv dismissed 29 N.Y.3d 976, 52 N.Y.S.3d 285, 74 N.E.3d 669 [2017]). Even assuming, arguendo, that defendant identified a mitigating factor that was of a kind or to a degree not adequately taken into account by the guidelines (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]), however, we conclude that defendant did not “adduce[ ] sufficient evidence to meet [his] burden of proof in establishing that the alleged ․ mitigating circumstance[ ] actually exist[ed]” (id.; see Hamm, 185 A.D.3d at 1494, 125 N.Y.S.3d 913).