Opinion
01-18-2017
PEOPLE of State of New York, respondent, v. Patrick ROSE, appellant.
Seymour W. James, Jr., New York, N.Y. (Desiree Sheridan of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel; Marielle Burnett on the brief), for respondent.
Seymour W. James, Jr., New York, N.Y. (Desiree Sheridan of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel; Marielle Burnett on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Sullivan, J.), dated December 2, 2013, 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 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] 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 ). If the defendant "surmounts the first two steps, the law permits a departure, but the court still has discretion to refuse to depart or to grant a departure" (People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see People v. Wyatt, 89 A.D.3d at 128, 931 N.Y.S.2d 85 ).
Contrary to the defendant's contention, the Supreme Court properly denied his request for a downward departure (see People v. Vizcarra, 138 A.D.3d 815, 28 N.Y.S.3d 336 ; People v. Houston, 122 A.D.3d 915, 997 N.Y.S.2d 480 ). The mitigating factors identified by the defendant were either adequately taken into account by the Sex Offender Registration Act Guidelines or did not warrant a downward departure from the presumptive risk level (see People v. Roldan, 140 A.D.3d 411, 30 N.Y.S.3d 871 ; People v. Ibarra, 137 A.D.3d 1097, 1098, 26 N.Y.S.3d 867 ).
LEVENTHAL, J.P., HALL, SGROI and DUFFY, JJ., concur.