PEOPLE v. LY (2024)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Guy J. Mangano, Jr., J.), dated March 8, 2024, 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 designated the defendant a level two sex offender, after assessing him 80 points on the risk assessment instrument and denying his request for a downward departure from his presumptive risk level.  The defendant appeals.

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).

Contrary to the defendant's contention, he was not entitled to a downward departure from his presumptive risk level.  The Supreme Court properly determined that the imposition of points under risk factor 3 (number of victims) and risk factor 7 (relationship with victim) did not result in an overassessment of the defendant's risk to public safety (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701;  People v. Glosque, 201 A.D.3d 823, 824, 157 N.Y.S.3d 392;  People v. Sofo, 168 A.D.3d 891, 892, 90 N.Y.S.3d 290;  cf.  People v. Sestito, 195 A.D.3d 869, 870, 145 N.Y.S.3d 849;  People v. Gonzalez, 189 A.D.3d 509, 511, 136 N.Y.S.3d 23), and the defendant failed to otherwise demonstrate the existence of a mitigating factor not already taken into account by the Guidelines that would warrant a downward departure (see People v. Pareja–Hidalgo, 222 A.D.3d 892, 893, 203 N.Y.S.3d 109;  People v. Rucano, 213 A.D.3d 709, 711, 182 N.Y.S.3d 247;  People v. Abdullah, 210 A.D.3d 704, 706, 178 N.Y.S.3d 94;  People v. Taylor, 199 A.D.3d 845, 846, 154 N.Y.S.3d 252).

Accordingly, the Supreme Court properly designated the defendant a level two sex offender.

BRATHWAITE NELSON, J.P., GENOVESI, LANDICINO and HOM, JJ., concur.