Opinion
2013-03-13
PEOPLE of State of New York, respondent, v. Eric S. DELINE, appellant.
Steven Banks, New York, N.Y. (Nancy E. Little of counsel), for appellant. Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart of counsel), for respondent.
Steven Banks, New York, N.Y. (Nancy E. Little of counsel), for appellant. Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart of counsel), for respondent.
PETER B. SKELOS, J.P., RUTH C. BALKIN, THOMAS A. DICKERSON, and SYLVIA HINDS–RADIX, JJ.
Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated October 14, 2011, 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.
At a hearing conducted pursuant to the Sex Offender Registration Act ( see Correction Law article 6–C; hereinafter SORA), the defendant requested that the Supreme Court downwardly depart from his presumptive risk level two designation. In that respect, the defendant demonstrated, by a preponderance of the evidence, a mitigating factor—namely, the lack of any convictions for sex offenses in the 14 years following his release on the instant offense—which is not adequately taken into account by the SORA Risk Assessment Guidelines ( see People v. Madison, 98 A.D.3d 573, 574, 949 N.Y.S.2d 701;People v. Thompson, 34 A.D.3d 661, 662, 824 N.Y.S.2d 657;People v. Abdullah, 31 A.D.3d 515, 516, 818 N.Y.S.2d 267). Nevertheless, the Supreme Court did not improvidently exercise its discretion in declining to downwardly depart. Particularly in light of the seriousness of the defendant's offense, and, thus, the danger he poses to societyshould he reoffend, the Supreme Court properly determined that the presumptive risk level did not represent an overassessment of the defendant's actual risk to public safety ( see People v. Madison, 98 A.D.3d at 574, 949 N.Y.S.2d 701;see also People v. October, 101 A.D.3d 975, 956 N.Y.S.2d 148;People v. Delvalle, 100 A.D.3d 726, 953 N.Y.S.2d 873,lv. denied20 N.Y.3d 860, 2013 N.Y. Slip Op. 64573, 2013 WL 536950 [2013];see generally People v. Wyatt, 89 A.D.3d 112, 931 N.Y.S.2d 85; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 2 [2006] ).
The defendant's remaining contentions are without merit.