Opinion
158 KA 22-01383
03-24-2023
The PEOPLE of the State of New York, Respondent, v. Adam BURGIO, Defendant-Appellant.
JULIE A. CIANCA, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
JULIE A. CIANCA, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, BANNISTER, AND OGDEN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq. ). As defendant correctly concedes, he failed to preserve for our review his contentions that a downward departure was warranted on the bases of, inter alia, his significant adult relationship with his wife, probationary sentence, and response to mental health treatment, inasmuch as he did not assert those grounds for a downward departure at the SORA hearing (see People v. Burgess , 191 A.D.3d 1256, 1256-1257, 137 N.Y.S.3d 781 [4th Dept. 2021] ; People v. Colon , 186 A.D.3d 1730, 1731, 130 N.Y.S.3d 89 [2d Dept. 2020], lv denied 36 N.Y.3d 903, 2020 WL 7502550 [2020] ). In any event, defendant's contentions lack merit. Even assuming, arguendo, that defendant "satisfied his burden with respect to the first two steps of the three-step analysis required in evaluating a request for a downward departure," we conclude that Supreme Court did not abuse its discretion in denying defendant's request ( People v. Cornwell , 213 A.D.3d 1239, 181 N.Y.S.3d 497, 2023 N.Y. Slip Op. 00566, *1 [4th Dept. 2023] ; see People v. Pritchard , 213 A.D.3d 1215, 182 N.Y.S.3d 467, 2023 N.Y. Slip Op. 00549, *1 [4th Dept. 2023] ; see generally People v. Gillotti , 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). Upon weighing the mitigating circumstances against the aggravating circumstances, including " ‘the quantity and nature of the child pornography used by defendant, ... and the extremely young children depicted therein’ " ( People v. Varin , 158 A.D.3d 1311, 1312, 68 N.Y.S.3d 359 [4th Dept. 2018], lv denied 31 N.Y.3d 905, 2018 WL 2014637 [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" ( Burgess , 191 A.D.3d at 1257, 137 N.Y.S.3d 781 ; see generally People v. Sincerbeaux , 27 N.Y.3d 683, 690-691, 37 N.Y.S.3d 39, 57 N.E.3d 1076 [2016] ).