Opinion
04-20-2016
PEOPLE of State of New York, respondent, v. Mohamed AZEEZ, appellant.
Lynn W.L. Fahey, New York, N.Y. (A. Alexander Donn of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen Abbot, and Tina Grillo of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (A. Alexander Donn of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen Abbot, and Tina Grillo of counsel), for respondent.
Opinion
Appeal by the defendant from an order of the Supreme Court, Queens County (Armstrong, J.), dated August 4, 2014, which designated him a level two sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
Contrary to the People's contention, this appeal from an order designating the defendant a level two sex offender pursuant to Correction Law article 6–C should not be dismissed on the ground that the defendant has been deported (see People v. Shim, ––– A.D.3d –––, 28 N.Y.S.3d 87; People v. Edwards, 117 A.D.3d 418, 985 N.Y.S.2d 43; People v. Gudino–Sanchez, 116 A.D.3d 565, 983 N.Y.S.2d 723; People v. Scott, 113 A.D.3d 491, 978 N.Y.S.2d 838).
The Supreme Court properly denied the defendant's application for a downward departure from his presumptive risk level two designation. A defendant seeking to establish a downward departure has the burden of identifying, as a matter of law, an appropriate mitigating factor, and establishing, by a preponderance of the evidence, facts in support of the identified mitigating factor. The defendant failed to meet this burden with respect to any of the alleged mitigating factors upon which he relies (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701; People v. Correnti, 126 A.D.3d 681, 2 N.Y.S.3d 375).
DILLON, J.P., LEVENTHAL, AUSTIN and LaSALLE, JJ., concur.