| People v Munguia |
| 2017 NY Slip Op 05860 |
| Decided on July 26, 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 July 26, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
REINALDO E. RIVERA
L. PRISCILLA HALL
JOSEPH J. MALTESE, JJ.
2015-09382
v
Gerson Munguia, appellant.
Lynn W. L. Fahey, New York, NY (Jenin Younes of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (Foley, J.), dated September 16, 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.
The defendant appeals from his designation as a level two sex offender pursuant to the Sex Offender Registration Act (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, 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 over-assessment 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 Rossano, 140 AD3d 1042, 1043; People v Rotunno, 117 AD3d 1019).
MASTRO, J.P., RIVERA, HALL and MALTESE, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court