Opinion
291 KA 17–01782
04-26-2019
The PEOPLE of the State of New York, Respondent, v. Joshua A. UERKVITZ, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, LINDLEY, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ), defendant appeals from an order, inter alia, classifying him as a level three risk after his conviction of a federal sex offense arising from his possession and attempted possession of child pornography (see 18 USC § 2252A [a][5][B]; [b][2] ). Contrary to defendant's contention, County Court did not abuse its discretion in denying his request for a downward departure to a level two risk. We conclude that defendant "failed to establish by a preponderance of the evidence the existence of mitigating factors not adequately taken into account by the guidelines" ( People v. Lewis, 156 A.D.3d 1431, 1432, 67 N.Y.S.3d 739 [4th Dept. 2017], lv denied 31 N.Y.3d 904, 2018 WL 1957439 [2018] ; see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ).
Moreover, even assuming, arguendo, that defendant established facts that might warrant a downward departure from his presumptive risk level, we conclude upon examining all of the relevant circumstances, including defendant's previous conviction for sexual abuse in the first degree ( Penal Law § 130.65[3] ) and the fact that defendant committed the present offense while under probation supervision for that prior offense, that the court providently exercised its discretion in denying defendant's request for a downward departure (see People v. Villafane, 168 A.D.3d 408, 408, 88 N.Y.S.3d 880 [1st Dept. 2019] ; People v. Iverson, 90 A.D.3d 1561, 1562, 936 N.Y.S.2d 408 [4th Dept. 2011], lv. denied 18 N.Y.3d 811, 2012 WL 1432180 [2012] ; see also People v. Smith, 122 A.D.3d 1325, 1326, 995 N.Y.S.2d 890 [4th Dept. 2014] ).