PEOPLE of State of New York, Respondent, v. Morales SAINTILUS, Appellant.
DECISION & ORDER
ORDERED that the order is affirmed, without costs or disbursements.
We agree with the Supreme Court's determination denying the defendant's application for a downward departure to a risk level one determination. 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 (hereinafter 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 SORA: Risk Assessment Guidelines and Commentary at 4  ). 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 over-assessment of the defendant's dangerousness and risk of sexual recidivism (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701; People v. Champagne, 140 A.D.3d 719, 720, 31 N.Y.S.3d 218).
Contrary to the defendant's contention, he failed to sustain his burden of proof in support of his application for a downward departure. Most of the circumstances cited by the defendant in support of his application were adequately taken into account under the SORA Guidelines, including his relationship to the victims (see SORA Guidelines at 12) and his lack of prior criminal history (see SORA Guidelines at 13–14). Accordingly, to the extent that the defendant relied upon these factors in support of his application for a downward departure, he failed to demonstrate that they constituted mitigating circumstances of a kind or to a degree not adequately taken into account by the SORA Guidelines (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701; People v. Santiago, 137 A.D.3d 762, 764, 26 N.Y.S.3d 339).
The defendant also cited community and family support as a mitigating circumstance, and submitted letters from pastors, family members, friends, and his wife, which generally describe the defendant as a good person, a community leader, and a good pastor. However, the defendant failed to demonstrate how having support from the community or his family established a lower likelihood of reoffense or danger to the community. Thus, he failed to establish that this was an appropriate mitigating factor which was otherwise not adequately taken into account by the SORA Guidelines (see People v. Kohout, 145 A.D.3d 922, 44 N.Y.S.3d 470). In any event, with respect to all of these circumstances, the defendant failed to demonstrate by a preponderance of the evidence that these circumstances resulted in the overassessment of his risk to public safety (see People v. Wyatt, 89 A.D.3d at 129, 931 N.Y.S.2d 85).
Although advanced age may constitute a basis for a downward departure (see SORA Guidelines at 5; People v. Benoit, 145 A.D.3d 687, 688, 43 N.Y.S.3d 406; People v. Santiago, 137 A.D.3d at 765, 26 N.Y.S.3d 339), here, the evidence proffered by the defendant, who committed the offenses between the ages of 48 to 53, failed to demonstrate that his age at the time of the SORA determination, 64 years old, resulted in the overassessment of his risk to public safety (see People v. Wyatt, 89 A.D.3d at 129, 931 N.Y.S.2d 85; People v. Rodriguez, 159 A.D.3d 842, 842–843, 69 N.Y.S.3d 825; People v. Rocano–Quintuna, 149 A.D.3d at 1115, 53 N.Y.S.3d 170). Accordingly, the defendant did not meet his burden of proof in establishing that this mitigating circumstance existed in his case.
Accordingly, we agree with the Supreme Court's determination designating the defendant a level two sex offender.
MASTRO, J.P., LEVENTHAL, DUFFY and LASALLE, JJ., concur.