People of State of New York, respondent, v. Allen Lopez, appellant. (2026)

Submitted—June 12, 2026

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Miriam Cyrulnik, J.), dated December 19, 2018, 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 (Correction Law art 6–C), the Supreme Court, after a hearing, assessed the defendant a total of 115 points on the risk assessment instrument, denied his application for a downward departure from the presumptive risk level, and designated him a level three sex offender.  The defendant appeals.

“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 ․ Guidelines;  and (2) establishing the facts in support of its existence by a preponderance of the evidence’ ” (People v. Bigelow, 175 AD3d 1443, 1443, quoting People v. Wyatt, 89 AD3d 112, 128;  see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines] ).  “If this twofold showing is made, the court then ‘must exercise its discretion by weighing the aggravating and mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over- or under-assessment of the defendant's dangerousness and risk of sexual recidivism’ ” (People v. Adams, 174 AD3d 828, 829, quoting People v. Gillotti, 23 NY3d 841, 861).

Here, the Supreme Court properly denied the defendant's application for a downward departure.  The alleged mitigating factors identified by the defendant either were adequately taken into account by the Guidelines or did not warrant a downward departure (see People v. Banister, 243 AD3d 928, 929–930;  People v. Gadsen, 235 AD3d 667, 668;  People v. Bonet, 225 AD3d 633, 635).

Accordingly, the Supreme Court properly designated the defendant a level three sex offender.

BARROS, J.P., FORD, MCCORMACK and OTTLEY, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court