Opinion
12-14-2016
PEOPLE of State of New York, respondent, v. Sherwood ROBINSON, appellant.
Lynn W.L. Fahey, New York, NY (Samuel Brown of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Joyce Adolfsen of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Samuel Brown of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Joyce Adolfsen of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (D'Emic, J.), dated March 25, 2016, 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.
A court determining a defendant's risk level under the Sex Offender Registration Act (see Correction Law art. 6–C; hereinafter SORA) is not permitted to downwardly depart from the presumptive risk level unless the defendant first identifies and proves the presence of “a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines” (People v. Jordan, 142 A.D.3d 596, 596, 36 N.Y.S.3d 608 [internal quotation marks omitted]; see People v. Lathan, 129 A.D.3d 686, 687, 8 N.Y.S.3d 921 ; SORA: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter the Guidelines] ). Here, nearly all of the mitigating circumstances identified by the defendant were adequately taken into account by the Guidelines: his educational and vocational progress while incarcerated, his completion of the sex offender program, his expression of remorse and acceptance of responsibility, and his post-release environment (see People v. Grabowski, 142 A.D.3d 697, 36 N.Y.S.3d 922 ; People v. Torres, 124 A.D.3d 744, 745–746, 998 N.Y.S.2d 464 ; People v. Erving, 124 A.D.3d 447, 998 N.Y.S.2d 191 ; People v. Riverso, 96 A.D.3d 1533, 1534, 947 N.Y.S.2d 250 ; People v. Roe, 47 A.D.3d 1156, 850 N.Y.S.2d 691 ).
The remaining circumstances cited by the defendant do not warrant a downward departure. The Supreme Court providently exercised its discretion in declining to depart from the presumptive risk level based on those circumstances, and thus, properly designated him a level three sex offender (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Grabowski, 142 A.D.3d at 698, 36 N.Y.S.3d 922; People v. Torres, 124 A.D.3d at 745–746, 998 N.Y.S.2d 464 ).
BALKIN, J.P., DICKERSON, HINDS–RADIX and BRATHWAITE NELSON, JJ., concur.