Opinion
2016–13039
04-11-2018
PEOPLE of State of New York, respondent, v. David MARTINEZ, appellant.
Seymour W. James, Jr., New York, N.Y. (Michael C. Taglieri of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Joyce Adolfsen of counsel; Walker Halstad on the brief), for respondent.
Seymour W. James, Jr., New York, N.Y. (Michael C. Taglieri of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Joyce Adolfsen of counsel; Walker Halstad on the brief), for respondent.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDERAppeal by the defendant from an order of the Supreme Court, Kings County (Michael J. Brennan, J.), dated November 16, 2016, 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 did not err in denying the defendant's request for a downward departure from his presumptive risk level to risk level one. 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] ).
Here, the mitigating circumstances identified by the defendant either were adequately taken into account by the SORA Guidelines, or were not proven by a preponderance of the evidence (see People v. Velasquez, 145 A.D.3d 924, 924–925, 42 N.Y.S.3d 845 ; People v. Game, 131 A.D.3d 460, 461, 13 N.Y.S.3d 900 ; People v. Coleman, 122 A.D.3d 599, 599–600, 995 N.Y.S.2d 223 ; People v. Wyatt, 89 A.D.3d 112, 131, 931 N.Y.S.2d 85 ).
Accordingly, the Supreme Court properly denied the defendant's request for a downward departure from his presumptive risk level designation.
RIVERA, J.P., ROMAN, DUFFY and CONNOLLY, JJ., concur.