PEOPLE v. CONTRERAS (2024)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Richmond County (Alexander Jeong, J.), dated January 21, 2022, 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.

In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6–C), the Supreme Court assessed the defendant 85 points on the risk assessment instrument, denied his request for a downward departure from his presumptive risk level, and designated him a level two sex offender.  The defendant challenges the denial of his request for a downward departure.

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 Guidelines;  and (2) establishing the facts in support of its existence by a preponderance of the evidence” (People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85;  see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines];  People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).  “If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the defendant's dangerousness and risk of sexual recidivism” (People v. Alvarado, 173 A.D.3d 909, 910, 100 N.Y.S.3d 351;  see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701;  People v. Felton, 175 A.D.3d 734, 735, 105 N.Y.S.3d 301;  People v. Champagne, 140 A.D.3d 719, 720, 31 N.Y.S.3d 218).

Here, the alleged mitigating factors identified by the defendant, including his lack of a disciplinary record while in prison and successful completion of sex offender treatment, either were adequately taken into account by the Guidelines (see Guidelines at 16–17;  People v. Zamora, 186 A.D.3d 885, 127 N.Y.S.3d 770;  People v. Alexander, 144 A.D.3d 1008, 41 N.Y.S.3d 746) or did not warrant a downward departure (see People v. Coleman, 225 A.D.3d 792, 794, 207 N.Y.S.3d 602;  People v. Smith, 194 A.D.3d 767, 768, 143 N.Y.S.3d 560).  Accordingly, the Supreme Court properly designated the defendant a level two sex offender.

IANNACCI, J.P., GENOVESI, WAN and LANDICINO, JJ., concur.