PEOPLE v. JORDAN (2018)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Ann Donnelly, J.), dated September 9, 2014, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is affirmed.

The defendant was designated a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.;  hereinafter SORA).  On appeal, the defendant contends that the Supreme Court erred in denying his application for a downward departure from his presumptive risk level.

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] [hereinafter the Guidelines] ).  Here, the mitigating circumstances identified by the defendant either were adequately taken into account by the Guidelines (see People v. Robinson, 145 A.D.3d 805, 806, 41 N.Y.S.3d 908;  People v. Torres, 124 A.D.3d 744, 745–746, 998 N.Y.S.2d 464), or did not warrant a downward departure from the presumptive risk level (see People v. Watson, 95 A.D.3d 978, 979, 944 N.Y.S.2d 584).

Accordingly, we agree with the Supreme Court's determination denying the defendant's request for a downward departure and designating him a level two sex offender.

MASTRO, J.P., ROMAN, SGROI and COHEN, JJ., concur.