| People v Brown |
| 2016 NY Slip Op 00702 |
| Decided on February 3, 2016 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on February 3, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
L. PRISCILLA HALL
SHERI S. ROMAN
SANDRA L. SGROI, JJ.
2015-00749
v
Glendon Brown, appellant.
Lynn W. L. Fahey, New York, NY (Tammy Linn of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel; Matthis Chiroux on the brief), for respondent.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (Brennan, J.), dated January 15, 2015, 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 (hereinafter SORA)] 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; People v Rosales, 133 AD3d 733). If the defendant makes that two-fold showing, the court must exercise its discretion by weighing the mitigating factors to determine whether the totality of the circumstances warrants a downward departure (see People v Gillotti, 23 NY3d at 861).
Here, the Supreme Court denied the defendant's request for a downward departure, stating that it saw no "compelling reason" to grant a downward departure. To the extent that the Supreme Court did not make a finding based upon the applicable preponderance of the evidence standard, the record is sufficient for this Court to make its own findings of fact and conclusions of law (see People v Bowden, 88 AD3d 972, 973). On the record presented, the factors identified by the defendant were either adequately taken into account by the SORA Guidelines (see People v Reede, 113 AD3d 663, 664), or did not warrant departure from the presumptive risk level (see People v Shelton, 126 AD3d 959, 960; People v Torres, 124 AD3d 744, 745-746; People v Lucius, 122 AD3d 819, 820). Accordingly, the Supreme Court properly designated the defendant a level two sex offender.
RIVERA, J.P., HALL, ROMAN and SGROI, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court