Majority
p. 815The People of the State of New York, Respondent, v Abraham A. Vizcarra, Appellant. [28 NYS3d 336]
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.
p. 816
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 AD3d 112 , 128 [2011]; see People v Gillotti, 23 NY3d 841 , 861 [2014]). 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 NY3d at 861 ; see People v Wyatt, 89 AD3d at 128 ).
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 AD3d 613 [2015]; People v Houston, 122 AD3d 915 [2014]).
Rivera, J.R, Balkin, Dickerson and Hinds-Radix, JJ., concur.
Cases cited
- People v. Wyatt 89 AD3d 112 at 128 p. 816
- People v. Gillotti 23 NY3d 841 at 861 p. 816
- People v. Sadler 124 AD3d 613 p. 816