Opinion
2018–06258
04-29-2020
PEOPLE of State of New York, Respondent, v. Abu KHAN, Appellant.
Paul Skip Laisure, New York, N.Y. (Meredith S. Holt of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Josette Simmons McGhee of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Meredith S. Holt of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Josette Simmons McGhee of counsel), for respondent.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.
DECISION & ORDER
ORDERED that the order is affirmed, without costs or disbursements.
At a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA), the Supreme Court assessed the defendant 100 points, presumptively placing him within the range for a level two designation. The defendant contends that the court improvidently exercised its discretion in denying his request for a downward departure from the presumptive risk level.
" Correction Law § 168–n(3) requires a court making a risk level determination pursuant to SORA to ‘render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based’ " ( People v. Rodriguez , 170 A.D.3d 902, 902–903, 94 N.Y.S.3d 353 [citation omitted]; see People v. Velasco , 147 A.D.3d 877, 46 N.Y.S.3d 663 ; People v. Smith , 144 A.D.3d 652, 652, 40 N.Y.S.3d 473 ; see also Correction Law § 168–n[3] ). Here, the Supreme Court failed to adequately set forth its findings of fact and conclusions of law underlying its determination with respect to the defendant's request for a downward departure from the presumptive risk level. However, since the record is sufficient for this Court to make its own findings of fact and conclusions of law, remittal is not required (see People v. Rodriguez , 170 A.D.3d at 903, 94 N.Y.S.3d 353 ; People v. Mercer , 148 A.D.3d 1187, 1188, 50 N.Y.S.3d 458 ; People v. Velasco , 46 N.Y.S.3d at 664 ; People v. Smith , 144 A.D.3d at 652, 40 N.Y.S.3d 473 ; People v. Barrett , 123 A.D.3d 783, 996 N.Y.S.2d 547 ).
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 [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 SORA: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines] ). 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 ( People v. McClendon , 175 A.D.3d 1329, 1331, 108 N.Y.S.3d 36 ; People v. Munoz , 155 A.D.3d 1068, 1069, 64 N.Y.S.3d 594 ; see Guidelines at 5), the defendant failed to demonstrate that his age at the time of the SORA hearing, 51 years old, constituted an appropriate mitigating factor and minimized his risk of reoffense (see People v. Adams, 174 A.D.3d 828, 102 N.Y.S.3d 688 ; see People v. Lewis , 173 A.D.3d 784, 100 N.Y.S.3d 90 ; People v. Tromba , 157 A.D.3d 915, 66 N.Y.S.3d 907 ; People v. Munoz , 155 A.D.3d at 1069, 64 N.Y.S.3d 594 ; People v. Garcia , 144 A.D.3d 650, 39 N.Y.S.3d 821 ). The research studies relied upon by the defendant failed to demonstrate by a preponderance of the evidence that his age constituted a basis for a downward departure (see People v. Mitchell , 178 A.D.3d 865, 866, 111 N.Y.S.3d 861 ; see also People v. Whitney , 168 A.D.3d 776, 89 N.Y.S.3d 638 ).
Accordingly, we affirm the Supreme Court's determination denying the defendant's request for a downward departure from his presumptive risk level and designating him a level two sex offender.
BALKIN, J.P., CHAMBERS, COHEN, CONNOLLY and WOOTEN, JJ., concur.