Opinion
2018–06494
03-29-2023
PEOPLE of State of New York, respondent, v. Adeola KOIKI, appellant.
Twyla Carter, New York, NY (Pauline Syrnik of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Jean M. Joyce, and Kaley Hanenkrat of counsel), for respondent.
Twyla Carter, New York, NY (Pauline Syrnik of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Jean M. Joyce, and Kaley Hanenkrat of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., ANGELA G. IANNACCI, PAUL WOOTEN, LILLIAN WAN, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (Dineen Riviezzo, J.), dated April 27, 2018, 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.
The Supreme Court properly denied the defendant's application for a downward departure to a risk level one designation. 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 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] [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 ).
Contrary to the defendant's contention, his lack of a prior criminal history was adequately taken into account by the Guidelines (see People v. Tavares–Nunez, 180 A.D.3d 719, 720, 115 N.Y.S.3d 717 ; People v. Saintilus, 169 A.D.3d 838, 839, 94 N.Y.S.3d 128 ). The defendant also cited family and community support as a mitigating factor and submitted letters from family members and friends which indicated that they would support the defendant upon his release. However, the defendant failed to demonstrate how having support from the community or his family established a lower likelihood of reoffense or danger to the community. Thus, the defendant failed to establish by a preponderance of the evidence an appropriate mitigating factor which was otherwise not adequately taken into account by the Guidelines (see People v. Baez, 199 A.D.3d 1027, 1028, 154 N.Y.S.3d 812 ; People v. Hamdam, 178 A.D.3d 1098, 1099, 112 N.Y.S.3d 550 ; People v. Boutin, 172 A.D.3d 1253, 1255, 99 N.Y.S.3d 417 ; People v. Saintilus, 169 A.D.3d at 839, 94 N.Y.S.3d 128 ).
The remaining alleged mitigating factors identified by the defendant were all adequately taken into account by the Guidelines (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Joe, 203 A.D.3d 1187, 1188, 163 N.Y.S.3d 453 ; People v. Pace, 188 A.D.3d 732, 733, 133 N.Y.S.3d 652 ; People v. MacCoy, 155 A.D.3d 897, 898, 63 N.Y.S.3d 688 ).
Accordingly, the Supreme Court properly denied the defendant's application for a downward departure and designated him a level two sex offender.
CONNOLLY, J.P., IANNACCI, WOOTEN and WAN, JJ., concur.