Supreme Court, Appellate Division, Second Department, New York.
PEOPLE of State of New York, respondent, v. Alexander SANCHEZ–JIMENEZ, appellant.
Decided: January 19, 2022
FRANCESCA E. CONNOLLY, J.P., SYLVIA O. HINDS–RADIX, SHERI S. ROMAN, DEBORAH A. DOWLING, JJ.
Janet E. Sabel, New York, NY (Svetlana M. Kornfeind of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Roni C. Piplani of counsel; Jacob Aboodi on the brief), for respondent.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Queens County (Suzanne Melendez, J.), dated December 20, 2018, 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; hereinafter SORA), the Supreme Court assessed the defendant 80 points on the risk assessment instrument, within the range for a presumptive designation as a level two sex offender. The court denied the defendant's request for a downward departure from his presumptive risk level and designated him a level two sex offender. 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 his or her presumptive risk level has the initial burden of “(1) identifying, as a matter of law, an appropriate mitigating favor, 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  [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, the defendant either failed to establish by a preponderance of the evidence the grounds asserted for a downward departure from his presumptive risk level (see People v. Mitchell, 196 A.D.3d 516, 518, 146 N.Y.S.3d 851; People v. Nicholson, 195 A.D.3d 758, 145 N.Y.S.3d 393; People v. Bigelow, 175 A.D.3d 1443, 107 N.Y.S.3d 406; People v. Santiago, 137 A.D.3d 762, 765, 26 N.Y.S.3d 339), or cited factors already taken into account by the Guidelines (see People v. Peoples, 189 A.D.3d 1282, 1283, 137 N.Y.S.3d 381; People v. Rivas, 185 A.D.3d 740, 741, 126 N.Y.S.3d 185; People v. Santiago, 137 A.D.3d at 764, 26 N.Y.S.3d 339). Accordingly, the Supreme Court properly denied the defendant's request for a downward departure from his presumptive risk level, and designated him a level two sex offender.
CONNOLLY, J.P., HINDS–RADIX, ROMAN and DOWLING, JJ., concur.
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