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Supreme Court, Appellate Division, Second Department, New York.

PEOPLE of State of New York, Respondent, v. Alfred E. BALCUNS, Appellant.


Decided: May 16, 2018

ALAN D. SCHEINKMAN, P.J., JOHN M. LEVENTHAL, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ. Laurette D. Mulry, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant. Timothy D. Sini, District Attorney, Riverhead, N.Y. (Michael J. Brennan of counsel), for respondent.


Appeal by the defendant from an order of the County Court, Suffolk County (Barbara Kahn, J.), dated January 26, 2017, 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.

At a hearing pursuant to the Sex Offender Registration Act (see Correction Law § 168 et seq.;  hereinafter SORA), the defendant was assessed 80 points under the Risk Assessment Instrument, which would have placed him within the range for a presumptive level two designation.  However, based upon the defendant's 2001 conviction of sexual abuse in the first degree stemming from sex abuse charges involving a two-year-old or three-year-old child, the Board of Examiners of Sex Offenders recommended that the defendant be classified as a level three sex offender, as a defendant is deemed a presumptive level three predicate sex offender in circumstances where, as here, the defendant had committed repeated sex offenses (see People v. Berry, 138 A.D.3d 945, 946, 28 N.Y.S.3d 631;  People v. Roache, 110 A.D.3d 776, 777, 973 N.Y.S.2d 271;  People v. Carter, 85 A.D.3d 995, 996, 925 N.Y.S.2d 874).

The defendant contends that the County Court improvidently exercised its discretion in denying his request for a downward departure from the presumptive risk level.

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 [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 Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [2006] ).  Here, the mitigating circumstances identified by the defendant either were adequately taken into account by the SORA Guidelines or were not proven by a preponderance of the evidence (see People v. Velasquez, 145 A.D.3d 924, 924–925, 42 N.Y.S.3d 845;  People v. Game, 131 A.D.3d 460, 461, 13 N.Y.S.3d 900;  People v. Coleman, 122 A.D.3d 599, 599–600, 995 N.Y.S.2d 223;  People v. Wyatt, 89 A.D.3d at 131, 931 N.Y.S.2d 85).

Accordingly, the County Court properly denied the defendant's request for a downward departure from his presumptive risk level designation.


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