Opinion
2015-00749.
02-03-2016
People of STATE of New York, respondent, v. Glendon BROWN, appellant.
Lynn W.L. Fahey, New York, N.Y. (Tammy Linn of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel; Matthis Chiroux on the brief), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Tammy Linn of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel; Matthis Chiroux on the brief), for respondent.
Opinion
Appeal by the defendant from an order of the Supreme Court, Kings County (Brennan, J.), dated January 15, 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.
A defendant seeking a downward departure from the presumptive risk level has the initial burden of “(1) identifying, as a matter of law, 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 [Sex Offender Registration Act (hereinafter SORA) ] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence” (People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85; see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701; People v. Rosales, 133 A.D.3d 733, 19 N.Y.S.3d 176). If the defendant makes that two-fold showing, the court must exercise its discretion by weighing the mitigating factors to determine whether the totality of the circumstances warrants a downward departure (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).
Here, the Supreme Court denied the defendant's request for a downward departure, stating that it saw no “compelling reason” to grant a downward departure. To the extent that the Supreme Court did not make a finding based upon the applicable preponderance of the evidence standard, the record is sufficient for this Court to make its own findings of fact and conclusions of law (see People v. Bowden, 88 A.D.3d 972, 973, 931 N.Y.S.2d 640). On the record presented, the factors identified by the defendant were either adequately taken into account by the SORA Guidelines (see People v. Reede, 113 A.D.3d 663, 664, 978 N.Y.S.2d 683), or did not warrant departure from the presumptive risk level (see People v. Shelton, 126 A.D.3d 959, 960, 6 N.Y.S.3d 121; People v. Torres, 124 A.D.3d 744, 745–746, 998 N.Y.S.2d 464; People v. Lucius, 122 A.D.3d 819, 820, 996 N.Y.S.2d 659). Accordingly, the Supreme Court properly designated the defendant a level two sex offender.