| People v Kohout |
| 2016 NY Slip Op 08551 |
| Decided on December 21, 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 21, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
LEONARD B. AUSTIN
SANDRA L. SGROI
HECTOR D. LASALLE, JJ.
2013-01650
v
John Kohout, appellant.
Seymour W. James, Jr., New York, NY (Steven J. Miraglia of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Roni C. Piplani, and Meredith D'Angelo of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Queens County (Margulis, J.), dated January 23, 2013, 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.
This appeal arises from the defendant's risk level designation under New York's Sex Offender Registration Act (see Correction Law § 168 et seq.; hereinafter SORA) following his conviction in federal court of a crime relating to his possession of child pornography. After a hearing, the Supreme Court assessed the defendant 95 points on the Risk Assessment Instrument, within the range for a presumptive designation as a level two sex offender. The defendant contends that the Supreme Court should have downwardly departed from the presumptive risk level and found him to be a level one sex offender.
In seeking a downward departure from the presumptive risk level, a defendant first must identify 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 (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006]). The defendant must then prove the existence of that factor in the case by a preponderance of the evidence (see People v Gillotti, 23 NY3d 841, 861; People v Marsh, 116 AD3d 680, 681-682; People v Wyatt, 89 AD3d 112, 128). If the defendant satisfies the burden of identifying and proving the existence of an appropriate mitigating factor, the court may then, as a matter of discretion, downwardly depart from the presumptive risk level. In determining whether to exercise that discretion in favor of a downward departure, the court must examine all the relevant circumstances in determining whether a designation at the presumptive risk level would result in an overassessment of the risk and danger of reoffense (see People v Gillotti, 23 NY2d at 861; People v Marsh, 116 AD3d at 682; People v Wyatt, 89 AD3d at 128).
Here, we conclude that the Supreme Court providently exercised its discretion in designating the defendant a level two sex offender under the SORA Guidelines and in declining to [*2]downwardly depart from the presumptive risk level (see People v Rossano, 140 AD3d 1042, 1043).
BALKIN, J.P., AUSTIN, SGROI and LASALLE, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court