Opinion
2019–00431
07-15-2020
PEOPLE of State of New York, Respondent, v. Luis SOTO, Appellant.
Robert DiDio, Kew Gardens, NY, for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott, and Antara D. Kanth of counsel), for respondent.
Robert DiDio, Kew Gardens, NY, for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott, and Antara D. Kanth of counsel), for respondent.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Queens County (Steven Paynter, J.), dated December 14, 2018, 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 defendant appeals from an order designating him a level two sex offender in this proceeding pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA), arguing that the Supreme Court erroneously assessed points against him under certain risk factors and denied his request for a downward departure.
The defendant's argument that the Supreme Court improperly treated the assessment of points against him under risk factors 3 and 7 as mandatory is unpreserved for appellate review (see CPL 470.05[2] ; People v. Butler, 157 A.D.3d 727, 730, 69 N.Y.S.3d 66 ) and, in any event, without merit. Moreover, we agree with the court's assessment of points against the defendant under those risk factors based upon the particular circumstances of his conviction for possessing child pornography (see People v. Gillotti, 23 N.Y.3d 841, 854–855, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Johnson, 11 N.Y.3d 416, 420, 872 N.Y.S.2d 379, 900 N.E.2d 930 ). 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 [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 at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see also SORA: Risk Assessment Guidelines and Commentary at 4–5 [2006] [hereinafter Guidelines] ). If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the defendant's dangerousness and risk of sexual recidivism (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Champagne, 140 A.D.3d 719, 720, 31 N.Y.S.3d 218 ). Here, the defendant failed to identify any mitigating factors not otherwise adequately taken into account by the Guidelines, and the denial of his request for a downward departure therefore was appropriate (see People v. Taylor, 137 A.D.3d 1099, 26 N.Y.S.3d 882 ; People v. Reede, 113 A.D.3d 663, 664, 978 N.Y.S.2d 683 ).
MASTRO, J.P., CHAMBERS, IANNACCI and CHRISTOPHER, JJ., concur.