Opinion
2013-06-5
PEOPLE of State of New York, respondent, v. Eldon HENRY, appellant.
Steven Banks, New York, N.Y. (Natalie Rea of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel; G. Aaron Leibowitz on the brief), for respondent.
Steven Banks, New York, N.Y. (Natalie Rea of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel; G. Aaron Leibowitz on the brief), for respondent.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.
Appeal by the defendant from an order of the Supreme Court, Kings County (Gary, J.), dated October 30, 2009, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
It is uncontested that the People met their burden of establishing, by clear and convincing evidence, that the defendant had previously been convicted of a felony sex crime ( see People v. Carter, 85 A.D.3d 995, 995, 925 N.Y.S.2d 874;see also People v. Eaton, 105 A.D.3d 722, 963 N.Y.S.2d 271). Therefore, irrespective of the points scored on the Risk Assessment Instrument, the defendant was presumptively a level three sex offender ( see People v. Carter, 85 A.D.3d at 995, 925 N.Y.S.2d 874;People v. Eaton, 105 A.D.3d 722, 963 N.Y.S.2d 271;see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at Risk Factor 9 [3] [2006] ).
A court has the discretion to downwardly depart from the presumptive risk level in a proceeding pursuant to the Sex Offender Registration Act (Correction Law article 6–C; hereinafter SORA) only after a defendant makes a twofold showing ( see People v. Arroyo, 105 A.D.3d 926, 963 N.Y.S.2d 349 [2d Dept. 2013] ). First, a defendant must identify, 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 [SORA] Guidelines” ( People v. Wyatt, 89 A.D.3d 112, 124, 931 N.Y.S.2d 85;see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] ). Second, a defendant must prove by a preponderance of the evidence the facts necessary to support the applicability of that mitigating factor ( see People v. Wyatt, 89 A.D.3d at 124, 931 N.Y.S.2d 85). “In the absence of that twofold showing, the court lacks discretion to depart from the presumptive risk level” ( People v. Arroyo, 105 A.D.3d 926, 963 N.Y.S.2d 349, 350 [2d Dept. 2013];see People v. Shephard, 101 A.D.3d 978, 979, 956 N.Y.S.2d 152,lv. denied21 N.Y.3d 855, 2013 WL 1876609 [Dec 19, 2012];People v. Wyatt, 89 A.D.3d at 124, 931 N.Y.S.2d 85).
Here, the defendant did not submit evidence to show the existence of any such mitigating factor. Since the defendant failed to demonstrate, by a preponderance of the evidence, that there existed a mitigating factor of a kind or to a degree not otherwise taken into account by the SORA guidelines, the Supreme Court lacked the discretion to depart from the presumptive risk level and properly designated the defendant a level three sex offender ( see People v. Fareira, 80 A.D.3d 589, 589–590, 914 N.Y.S.2d 651;People v. King, 74 A.D.3d 1162, 1163, 906 N.Y.S.2d 570).