| People v Sanchez |
| 2016 NY Slip Op 07632 |
| Decided on November 16, 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 November 16, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
THOMAS A. DICKERSON
COLLEEN D. DUFFY
FRANCESCA E. CONNOLLY, JJ.
2012-08335
v
Orlando Sanchez, appellant.
Seymour W. James, Jr., New York, NY (Lorraine Maddalo of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (Sullivan, J.), dated July 30, 2012, 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 downward departure from a sex offender's presumptive risk level generally is warranted only where "there exists . . . [a] mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account" by the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA) Guidelines (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]; see People v Fryer, 101 AD3d 835, 836; People v Bowens, 55 AD3d 809, 810; People v Taylor, 47 AD3d 907, 908; People v Hines, 24 AD3d 524, 525). A defendant seeking a downward departure 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 Fryer, 101 AD3d at 836; see People v Watson, 95 AD3d 978, 979). " A sex offender's successful showing by a preponderance of the evidence of facts in support of an appropriate mitigating factor does not automatically result in the relief requested, but merely opens the door to the SORA court's exercise of its sound discretion upon further examination of all relevant circumstances'" (People v Harris, 93 AD3d 704, 706, quoting People v Wyatt, 89 AD3d 112, 127).
To the extent that the defendant established facts that might warrant a downward departure from his presumptive risk level designation, upon examining all of the relevant circumstances, the Supreme Court providently exercised its discretion in denying the defendant's application for a downward departure (see People v Fryer, 101 AD3d at 836; cf. People v Goossens, 75 AD3d 1171).
Accordingly, the Supreme Court properly designated the defendant a level two sex offender.
DILLON, J.P., DICKERSON, DUFFY and CONNOLLY, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court