| People v Robinson |
| 2016 NY Slip Op 08382 |
| Decided on December 14, 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 December 14, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
THOMAS A. DICKERSON
SYLVIA O. HINDS-RADIX
VALERIE BRATHWAITE NELSON, JJ.
2016-03588
v
Sherwood Robinson, appellant.
Lynn W. L. Fahey, New York, NY (Samuel Brown of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Joyce Adolfsen of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (D'Emic, J.), dated March 25, 2016, 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.
A court determining a defendant's risk level under the Sex Offender Registration Act (see Correction Law art 6-C; hereinafter SORA) is not permitted to downwardly depart from the presumptive risk level unless the defendant first identifies and proves the presence of "a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines" (People v Jordan, 142 AD3d 596, 596 [internal quotation marks omitted]; see People v Lathan, 129 AD3d 686, 687; SORA: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter the Guidelines]). Here, nearly all of the mitigating circumstances identified by the defendant were adequately taken into account by the Guidelines: his educational and vocational progress while incarcerated, his completion of the sex offender program, his expression of remorse and acceptance of responsibility, and his post-release environment (see People v Grabowski, 142 AD3d 697; People v Torres, 124 AD3d 744, 745-746; People v Erving, 124 AD3d 447; People v Riverso, 96 AD3d 1533, 1534; People v Roe, 47 AD3d 1156).
The remaining circumstances cited by the defendant do not warrant a downward departure. The Supreme Court providently exercised its discretion in declining to depart from the presumptive risk level based on those circumstances, and thus, properly designated him a level three sex offender (see People v Gillotti, 23 NY3d 841, 861; People v Grabowski, 142 AD3d at 698; People v Torres, 124 AD3d at 745-746).
BALKIN, J.P., DICKERSON, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court