PEOPLE v. CORREA (2020)

ORDERED that the order is affirmed, without costs.

Defendant appeals from an order designating him a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), contending that the Criminal Court should have granted his application for a downward departure from his presumptive risk level.

A defendant seeking a downward departure from a presumptive risk level must identify mitigating circumstances that are of a kind, or to a degree, not adequately taken into account by the SORA guidelines (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [SORA Guidelines] ), and must prove the existence of those circumstances by a preponderance of the evidence (see People v. Gillotti, 23 N.Y.3d 841, 861-864 [2014]). “The Board [of Examiners of Sex Offenders] or a court may choose to depart downward in an appropriate case and in those instances where (i) the victim's lack of consent is due only to inability to consent by virtue of age and (ii) scoring 25 points in this category results in an over-assessment of the offender's risk to public safety” (SORA Guidelines at 9; see People v. Anderson, 137 A.D.3d 988, 988 [2016]). A downward departure is not warranted here given the totality of the circumstances surrounding the incident, including, but not limited to, the age disparity between the then 28-year-old defendant and the then 14-year-old victim (see People v. Garner, 163 A.D.3d 1009 [2018]; People v. Quirindongo, 153 A.D.3d 863 [2017]; People v. Fryer, 101 A.D.3d 835, 836 [2012]; People v. Wyatt, 89 A.D.3d 112, 130 [2011]).

Additionally, the mitigating circumstances identified by defendant, that there was only one victim, that his prior criminal history did not involve violent behavior and that his time in jail was satisfactory, were adequately taken into account by the SORA Guidelines and, thus, a departure from the presumptive risk level is not warranted (see People v. Garner, 163 A.D.3d at 1010).

Accordingly, the order designating defendant a level two sex offender is affirmed.

ALIOTTA, P.J., WESTON and ELLIOT, JJ., concur.