Opinion
2016–09690
03-28-2018
PEOPLE of State of New York, respondent, v. Christopher WUSTRAU, appellant.
Del Atwell, East Hampton, NY, for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
Del Atwell, East Hampton, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, SANDRA L. SGROI, JEFFREY A. COHEN, JJ.
DECISION & ORDERAppeal by the defendant from an order of the County Court, Dutchess County (Craig Stephen Brown, J.), dated September 8, 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.
The County Court properly denied the defendant's application for a downward departure to a risk level one designation. 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 (hereinafter 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 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] ). Here, the circumstances identified by the defendant did not constitute appropriate mitigating factors because they either did not tend to establish a lower likelihood of reoffense or were adequately taken into account by the SORA Guidelines (see People v. MacCoy, 155 A.D.3d 897, 898, 63 N.Y.S.3d 688 ; People v. Robinson, 145 A.D.3d 805, 806, 41 N.Y.S.3d 908 ; People v. Torres, 124 A.D.3d 744, 745–746, 998 N.Y.S.2d 464 ).
"A sex offender facing risk level classification under SORA has a right to the effective assistance of counsel" ( People v. Roache, 110 A.D.3d 776, 777, 973 N.Y.S.2d 271 ; see People v. Willingham, 101 A.D.3d 979, 980, 956 N.Y.S.2d 165 ; People v. Bowles, 89 A.D.3d 171, 179–180, 932 N.Y.S.2d 112 ). Here, contrary to the defendant's contention, the record, viewed in totality, demonstrates that he was afforded the effective assistance of counsel (see People v. Roache, 110 A.D.3d at 777, 973 N.Y.S.2d 271 ; cf. People v. Willingham, 101 A.D.3d at 980, 956 N.Y.S.2d 165 ).
MASTRO, J.P., ROMAN, SGROI and COHEN, JJ., concur.