Opinion
04-26-2017
PEOPLE of State of New York, respondent, v. Luis ROCANO–QUINTUNA, appellant.
Lynn W.L. Fahey, New York, NY (Jenin Younes of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel; Gregory Musso on the brief), for respondent.
Lynn W.L. Fahey, New York, NY (Jenin Younes of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel; Gregory Musso on the brief), for respondent.
RANDALL T. ENG, P.J., L. PRISCILLA HALL, SHERI S. ROMAN, and SYLVIA O. HINDS–RADIX, JJ.
Appeal by the defendant from an order of the Supreme Court, Kings County (Brennan, J.), dated May 18, 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.
A defendant seeking a downward departure from his 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 not otherwise adequately taken into account by the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA) Guidelines, and (2) establishing the facts in support of its existence by a preponderance of the evidence (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006; hereinafter Guidelines]; People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Velasquez, 145 A.D.3d 924, 42 N.Y.S.3d 845 ; People v. Kohout, 145 A.D.3d 922, 44 N.Y.S.3d 470 ; People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85 ). Only if this twofold showing is made does the court have the "discretion to grant or deny the departure application based upon an examination of all circumstances relevant to the offender's risk of reoffense and danger to the community" (People v. Wyatt, 89 A.D.3d at 128, 931 N.Y.S.2d 85 ; see People v. Kohout, 145 A.D.3d at 922, 44 N.Y.S.3d 470 ; People v. Uphael, 140 A.D.3d 1143, 1144, 35 N.Y.S.3d 194 ).
Here, most of the circumstances identified by the defendant in support of his application for a downward departure were adequately taken into account by the Guidelines: his lack of a criminal history before the crimes he committed against the victim, his unblemished prison disciplinary record, and his conduct while incarcerated, including completion of a sex offender treatment program and participation in educational and vocational courses (see People v. Robinson, 145 A.D.3d 805, 41 N.Y.S.3d 908 ; People v. Alexander, 144 A.D.3d 1008, 41 N.Y.S.3d 746 ; People v. Perez, 138 A.D.3d 1081, 1082, 28 N.Y.S.3d 905 ; People v. Torres, 124 A.D.3d 744, 745–746, 998 N.Y.S.2d 464 ; People v. Riverso, 96 A.D.3d 1533, 1534, 947 N.Y.S.2d 250 ). Furthermore, although "advanced age" may constitute a basis for a downward departure (Guidelines at 5; see People v. Santiago, 137 A.D.3d 762, 764–765, 26 N.Y.S.3d 339 ), the defendant, who committed some of the subject offenses when he was 45 years old, failed to demonstrate that his age at the time of the SORA determination, 49 years old, "resulted in the over-assessment of his risk to public safety" (People v. Wyatt, 89 A.D.3d at 129, 931 N.Y.S.2d 85 ) and, thus, did not meet his burden of proof in establishing that this mitigating circumstance actually existed in the case at hand (People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see People v. Benoit, 145 A.D.3d 687, 43 N.Y.S.3d 406 ).
Since the factors identified by the defendant were either adequately taken into account by the Guidelines, or were not proven by a preponderance of the evidence, the Supreme Court did not have the discretion to depart from his presumptive risk level (see People v. Santiago, 137 A.D.3d at 765, 26 N.Y.S.3d 339 ; People v. Wyatt, 89 A.D.3d at 128, 931 N.Y.S.2d 85 ).