Majority
Appeal by the defendant from an order of the Supreme Court, Kings County (J. Goldberg, J.), dated April 12, 2011, which, after a hearing, designated him a level three sexually violent offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
In determining a defendant’s risk level pursuant to the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]), “[a] downward departure from a sex offender’s presumptive risk level generally is only warranted where there exists a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines” (People v Watson, 95 AD3d 978 , 979 [2012]; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). A defendant seeking a downward departure 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 Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence” (People v Wyatt, 89 AD3d 112 , 128 [2011]).
The defendant contends that he was entitled to a downward
Rivera, J.E, Hall, Miller and Duffy, JJ., concur.
Cases cited
- People v. Watson 95 AD3d 978 at 979 p. 875
- People v. Wyatt 89 AD3d 112 at 128 p. 875
- People v. Knox 12 NY3d 60 at 70 p. 876