Opinion
04-13-2016
PEOPLE of State of New York, etc., respondent, v. Abraham A. VIZCARRA, appellant.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated August 12, 2015, 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 ).
Here, the County Court properly denied the defendant's request for a downward departure and, thus, properly designated him a level two sex offender (see People v. Sadler, 124 A.D.3d 613, 997 N.Y.S.2d 915 ; People v. Houston, 122 A.D.3d 915, 997 N.Y.S.2d 480 ).
RIVERA, J.P., BALKIN, DICKERSON and HINDS–RADIX, JJ., concur.