PEOPLE v. MISHK (2026)

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Dutchess County (Edward T. McLoughlin, J.), dated September 9, 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.

The defendant was convicted, upon his plea of guilty, of two counts of rape in the third degree.  After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C), the County Court assessed the defendant 105 points on the risk assessment instrument, denied his application for a downward departure from his presumptive risk level, and designated him a level two sex offender.  The defendant appeals.

A defendant seeking a downward departure from a 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. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).

Here, the defendant failed to sustain his burden of proof in support of his application for a downward departure, as the purported mitigating factors identified by the defendant either were adequately taken into account by the Guidelines or did not establish a lower likelihood of reoffense or danger to the community (see People v. Correa, 242 A.D.3d 1225, 244 N.Y.S.3d 247;  People v. Permenter, 208 A.D.3d 905, 174 N.Y.S.3d 104).

Accordingly, the County Court properly denied the defendant's application for a downward departure and designated him a level two sex offender.

DUFFY, J.P., CHRISTOPHER, WARHIT and GOLDBERG VELAZQUEZ, JJ., concur.