People v. Morgan — 124 A.D.3d 742

Majority

p. 742

The People of the State of New York, Respondent, v William Morgan, Appellant.

[998 NYS2d 660]—

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated October 24, 2013, which, after a hearing, designated him a level three 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

p. 743

otherwise not adequately taken into account by the [Sex Offender Registration Act: Risk Assessment Guidelines and Commentary]; and (2) establishing the facts in support of its existence by a preponderance of the evidence” (People v Wyatt, 89 AD3d 112 , 128 [2011]; see People v Gillotti, 23 NY3d 841 , 861-862 [2014]).

Here, the defendant failed to establish facts in support of his claim that his response to treatment had been exceptional, so as to warrant a downward departure (see People v Coleman, 122 AD3d 599 [2014]; People v Tisman, 116 AD3d 1018 , 1019 [2014]).

Accordingly, the County Court properly denied the defendant’s request for a downward departure from his presumptive designation as a level three sex offender.

Dillon, J.E, Leventhal, Chambers and Duffy, JJ., concur.

Cases cited

People v. Wyatt 89 AD3d 112 N.Y. App. Div. 2011-10-18 at 128 p. 743
People v. Gillotti 23 NY3d 841 N.Y. 2014-06-10 at 861-862 p. 743
People v. Coleman 122 AD3d 599 N.Y. App. Div. 2014-11-05 p. 743