Opinion
116 KA 19-02205
02-05-2021
The PEOPLE of the State of New York, Respondent, v. Timothy BURGESS, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq. ), defendant, who relocated to New York State having been previously convicted of a sex offense in Florida, appeals from an order determining that he is a level two risk. Defendant failed to preserve for our review his contention that he was entitled to a downward departure from his presumptive risk level on the ground that he had been at liberty for a prolonged period without any reoffending conduct (see People v. Iverson , 90 A.D.3d 1561, 1562, 936 N.Y.S.2d 408 [4th Dept. 2011], lv denied 18 N.Y.3d 811, 2012 WL 1432180 [2012] ; see generally People v. Johnson , 11 N.Y.3d 416, 421-422, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008] ). In any event, defendant's contention lacks merit. Even assuming, arguendo, that defendant's allegation constitutes a mitigating circumstance that is, "as a matter of law, of a kind or to a degree not adequately taken into account by the guidelines" ( People v. Gillotti , 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ; see People v. Sotomayer , 143 A.D.3d 686, 687, 38 N.Y.S.3d 271 [2d Dept. 2016] ), we conclude that defendant failed to establish by a preponderance of the evidence the existence of that mitigating circumstance in this case (see People v. Yglesias , 180 A.D.3d 821, 823, 120 N.Y.S.3d 169 [2d Dept. 2020], lv denied 35 N.Y.3d 910, 2020 WL 3468268 [2020] ; People v. Sprinkler , 162 A.D.3d 802, 803, 79 N.Y.S.3d 232 [2d Dept. 2018], lv denied 32 N.Y.3d 907, 2018 WL 4997600 [2018] ; cf. People v. Abdullah , 31 A.D.3d 515, 516, 818 N.Y.S.2d 267 [2d Dept. 2006] ). Moreover, even if defendant surmounted the first two steps of the analysis (see generally Gillotti , 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ), upon weighing the mitigating circumstance against the aggravating circumstances—most prominently defendant's " ‘overall criminal history’ " ( People v. Duryee , 130 A.D.3d 1487, 1488, 12 N.Y.S.3d 731 [4th Dept. 2015] ), including his conviction for failing to comply with the sex offender law in Florida (see People v. Perez , 158 A.D.3d 1070, 1071, 70 N.Y.S.3d 313 [4th Dept. 2018], lv denied 31 N.Y.3d 905, 2018 WL 2013412 [2018] )—we conclude that the totality of the circumstances does not warrant a downward departure inasmuch as defendant's presumptive risk level does not represent an over-assessment of his dangerousness and risk of sexual recidivism (see People v. Sincerbeaux , 27 N.Y.3d 683, 690-691, 37 N.Y.S.3d 39, 57 N.E.3d 1076 [2016] ).