Opinion
2018–07944
01-29-2020
PEOPLE of State of New York, Respondent, v. Steven COLLAZO, Appellant.
Paul Skip Laisure, New York, N.Y. (William Kastin of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Anthea H. Bruffee of counsel; Ruby D. Andrade on the brief), for respondent.
Paul Skip Laisure, New York, N.Y. (William Kastin of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Anthea H. Bruffee of counsel; Ruby D. Andrade on the brief), for respondent.
REINALDO E. RIVERA, J.P., JOSEPH J. MALTESE, BETSY BARROS, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
ORDERED that the order is affirmed, without costs or disbursements.
We agree with the Supreme Court's determination denying the defendant's request for a downward departure from his presumptive risk level. 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 ; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] ). If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the defendant's dangerousness and risk of sexual recidivism (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Champagne, 140 A.D.3d 719, 720, 31 N.Y.S.3d 218 ).
Although "advanced age" may constitute a basis for a downward departure, the defendant failed to demonstrate that his age at the time of the SORA hearing, 55 years old, would, in and of itself, reduce his risk of reoffending (see People v. Kaiser, 168 A.D.3d 1002, 1003, 91 N.Y.S.3d 516 ; People v. Munoz, 155 A.D.3d 1068, 1069, 64 N.Y.S.3d 594 ). Similarly, although a debilitating medical condition may constitute a mitigating factor where it reduces the likelihood of reoffense (see People v. Williams, 148 A.D.3d 540, 49 N.Y.S.3d 671 ; People v. Stevens, 55 A.D.3d 892, 867 N.Y.S.2d 108 ), here, the defendant did not demonstrate that his medical conditions would decrease the likelihood of reoffense (see People v. Portalatin, 145 A.D.3d 463, 41 N.Y.S.3d 712 ). The remaining circumstances identified by the defendant at the hearing did not constitute appropriate mitigating factors because they did not tend to establish a lower likelihood of reoffense (see People v. Wyatt, 89 A.D.3d at 121, 931 N.Y.S.2d 85 ).
The defendant's remaining contention is unpreserved for appellate review and, in any event, without merit.
Accordingly, we agree with the Supreme Court's designation of the defendant as a level three sex offender.
RIVERA, J.P., MALTESE, BARROS, BRATHWAITE NELSON and IANNACCI, JJ., concur.