People v. Pavia

Full title: People of State of New York, respondent, v. Florencio Pavia, appellant.

Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Oct 22, 2014

121 A.D.3d 960 (N.Y. App. Div. 2014)

2014 N.Y. Slip Op. 7138

993 N.Y.S.2d 782

Opinion

2012-08043

10-22-2014

People of State of New York, respondent, v. Florencio Pavia, appellant.

Seymour W. James, Jr., New York, N.Y. (Michael C. Taglieri of counsel), for appellant. Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Paul M. Tarr of counsel), for respondent.

WILLIAM F. MASTRO, J.P.

SANDRA L. SGROI

JEFFREY A. COHEN

ROBERT J. MILLER, JJ.

Seymour W. James, Jr., New York, N.Y. (Michael C. Taglieri of counsel), for appellant.

Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Paul M. Tarr of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Richmond County (Meyer J.), dated August 15, 2012, 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.

In determining a defendant's risk level pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA), "[a] downward departure from a sex offender's presumptive risk level generally is only warranted where there exists a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines" (People v Watson, 95 AD3d 978, 979; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). A defendant seeking a downward departure 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 AD3d 112, 128).

Here, contrary to the defendant's contention, he failed to show that his expected deportation was, "as a matter of law, an appropriate mitigating factor" (id.; see People v Romero, 113 AD3d 605; People v Kachatov, 106 AD3d 973, 973). Accordingly, the defendant was not entitled to a downward departure from the presumptive risk level.

MASTRO, J.P., SGROI, COHEN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court