PEOPLE v. ROBINSON (2018)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Richmond County (Mario F. Mattei, J.), dated April 6, 2016, which, after a hearing, designated him a level three 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 (see Correction Law art.  6–C;  hereinafter SORA), the Supreme Court assessed the defendant 110 points on the risk assessment instrument, which is within the range for a presumptive designation as a level three sex offender.  The court denied the defendant's request for a downward departure and designated him a level three sex offender.  On appeal, the defendant challenges only 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 [SORA 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 People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701;  see also Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [2006] ).  Here, the defendant failed to identify any such mitigating factor (see People v. Young, 158 A.D.3d 829, 68 N.Y.S.3d 887).  Accordingly, we agree with the Supreme Court's determination denying the defendant's request for a downward departure and designating him a level three sex offender.

BALKIN, J.P., AUSTIN, SGROI and IANNACCI, JJ., concur.