| People v Padilla |
| 2017 NY Slip Op 06388 |
| Decided on August 30, 2017 |
| 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 August 30, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
L. PRISCILLA HALL
JEFFREY A. COHEN
ANGELA G. IANNACCI, JJ.
2016-03127
v
Robert Padilla, appellant.
Seymour W. James, Jr., New York, NY (Nancy E. Little of counsel; Geoffrey Butterworth on the brief), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Richmond County (Mattei, J.), dated March 16, 2016, 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.
The defendant appeals from his designation as a level two sex offender pursuant to the Sex Offender Registration Act (see Correction Law § 168, et seq.; hereinafter SORA), contending that the Supreme Court should have granted his application for a downward departure from his presumptive risk level designation.
A defendant seeking a downward departure must identify mitigating circumstances that are of a kind, or to a degree, not adequately taken into account by the SORA guidelines (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006]), and must prove the existence of those circumstances by a preponderance of the evidence (see People v Gillotti, 23 NY3d 841, 861-864; People v Kohout, 145 AD3d 922, 923). If the defendant satisfies that burden, "the law permits a departure, but the court still has discretion to refuse to depart or to grant a departure" (People v Gillotti, 23 NY3d at 861). In exercising this discretion, the court must determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the defendant's dangerousness and risk of sexual recidivism (see id.; People v Kohout, 145 AD3d at 923).
Under the circumstances of this case, the Supreme Court providently exercised its discretion in denying the defendant's application for a downward departure from his presumptive designation as a level two sex offender (see People v Rocano-Quintuna, 149 AD3d 1114, 1115; People v Robinson, 145 AD3d 805, 806).
MASTRO, J.P., HALL, COHEN and IANNACCI, JJ., concur.
ENTER: Aprilanne Agostino Clerk of the Court