PEOPLE v. RIVERA

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PEOPLE of State of New York, respondent, v. John RIVERA, appellant.

Decided: September 11, 2013

REINALDO E. RIVERA, J.P., PETER B. SKELOS, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ. Steven Banks, New York, N.Y. (Nancy E. Little of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Rona I. Kugler of counsel), for respondent.

Appeal by the defendant from an order of the Supreme Court, Queens County (Rotker, J.), dated February 10, 2005, which, after a hearing to redetermine his sex offender risk level pursuant to the stipulation of settlement in Doe v. Pataki, 3 F.Supp.2d 456, designated him a level two sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is affirmed.

At a hearing conducted pursuant to the Sex Offender Registration Act (see Correction Law art. 6–C; hereinafter SORA), to redetermine the defendant's SORA risk level pursuant to the stipulation of settlement in Doe v. Pataki, 3 F.Supp.2d 456, the defendant requested that the Supreme Court downwardly depart from his designation as a presumptive risk level two sex offender. In that respect, the defendant demonstrated, by a preponderance of the evidence, that he had not been convicted of any sex offenses in the 12 years following his release from prison, which is a mitigating factor not adequately taken into account by the SORA Risk Assessment Guidelines (see People v. Deline, 104 A.D.3d 745, 960 N.Y.S.2d 497, lv. denied 21 N.Y.3d 856, 2013 WL 2395335; People v. Madison, 98 A.D.3d 573, 574, 949 N.Y.S.2d 701; People v. Thompson, 34 A.D.3d 661, 662, 824 N.Y.S.2d 657; People v. Abdullah, 31 A.D.3d 515, 516, 818 N.Y.S.2d 267). Nevertheless, in light of the grievous nature of the defendant's offense and, thus, the danger he poses to society should he reoffend, the Supreme Court did not improvidently exercise its discretion in declining to downwardly depart from the presumptive risk level (see People v. Deline, 104 A.D.3d at 745–746, 960 N.Y.S.2d 497; People v. Madison, 98 A.D.3d at 574, 949 N.Y.S.2d 701; see also People v. Delvalle, 100 A.D.3d 726, 953 N.Y.S.2d 873; see generally People v. Wyatt, 89 A.D.3d 112, 931 N.Y.S.2d 85; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 2 [2006] ).

The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.

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