PEOPLE v. HANES (2020)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Guy James Mangano, Jr., J.), entered November 14, 2018.  The order, 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, within the range for a presumptive designation as a level three sex offender.  The court denied the defendant's request for a downward departure from his presumptive risk level.  On appeal, the defendant challenges the denial of his request for a downward departure from his presumptive risk level.

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 [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 SORA: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines] ).  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 (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701; People v. Champagne, 140 A.D.3d 719, 720, 31 N.Y.S.3d 218).

In this case, we agree with the Supreme Court's denial of the defendant's request for a downward departure from his presumptive risk level, since the factors cited by him were either already taken into account by the Guidelines, or were not a basis for a downward departure from his presumptive risk level (see People v. Munoz, 155 A.D.3d 1068, 64 N.Y.S.3d 594).

Accordingly, we agree with the Supreme Court's determination designating the defendant a level three sex offender.

DILLON, J.P., AUSTIN, ROMAN, HINDS–RADIX and CHRISTOPHER, JJ., concur.