People of State of New York, respondent, v. Mozard Fleurimond, appellant.

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

People of State of New York, respondent, v. Mozard Fleurimond, appellant.

2016–01845

Decided: September 26, 2018

JOHN M. LEVENTHAL, J.P. SANDRA L. SGROI SYLVIA O. HINDS–RADIX COLLEEN D. DUFFY, JJ. The Legal Aid Society, New York, N.Y. (Adrienne M. Gantt of counsel;  Elizabeth Wu on the brief), for appellant.

Submitted—May 1, 2018

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Elizabeth A. Foley, J.), dated February 9, 2016, 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.

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 [Sex Offender Registration Act] Guidelines;  and (2) establishing the facts in support of its existence by a preponderance of the evidence” (People v. Wyatt, 89 AD3d 112, 128;  see People v. Gillotti, 23 NY3d 841, 861;  see also Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [2006] ).  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 NY3d at 861;  People v. Champagne, 140 AD3d 719, 720).

The defendant failed to identify, as a matter of law, an appropriate mitigating factor and failed to establish the facts in support of its existence by a preponderance of the evidence (see People v. Curry, 158 AD3d 52, 60–62;  People v. Rocano–Quintuna, 149 AD3d 1114, 1115).  Accordingly, we agree with the Supreme Court's determination to deny the defendant's application for a downward departure from his presumptive risk level and its determination to designate him a level two sex offender.

LEVENTHAL, J.P., SGROI, HINDS–RADIX and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court