People v. Gonzalez

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated August 14, 2015, which, after a hearing, designated her a level two sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

This proceeding was commenced after the appellant was convicted in federal court of the crime of sexual intercourse with a ward ( 18 USC § 2243 [b]). In a case summary and risk assessment instrument (hereinafter RAI) dated April 21, 2015,

The appellant’s contention that she is entitled to a downward departure to risk level one also is without merit. “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 not otherwise adequately taken into account by the [SORA] Guidelines [Sex Offender Registration Act: Risk Assessment Guidelines and Commentary (2006)]; and (2) establishing the facts in support of its existence by a preponderance of the evidence’ ” (People v Roldan, 111 AD3d 909 , 910 [2013], quoting People v Wyatt, 89 AD3d 112 , 128 [2011]; see People v Gillotti, 23 NY3d 841 , 861 [2014]). Here, the SORA court providently exercised its discretion in concluding, based on the mitigating factors raised by the appellant, that a downward departure to a risk level two was appropriate, and that further departure to a risk level one was not warranted (see e.g. People v Wyatt, 89 AD3d at 131 ).

The appellant’s remaining contention is without merit.

Chambers, J.P., Austin, Maltese and Duffy, JJ., concur.