People v. Rose

Appeal by the defendant from an order of the Supreme Court, Kings County (Sullivan, J.), dated December 2, 2013, 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.

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 ).

Contrary to the defendant’s contention, the Supreme Court properly denied his request for a downward departure (see People v Vizcarra, 138 AD3d 815 [2016]; People v Houston, 122 AD3d 915 [2014]). The mitigating factors identified by the defendant were either adequately taken into account by the Sex Offender Registration Act Guidelines or did not warrant a downward departure from the presumptive risk level (see People v Roldan, 140 AD3d 411 [2016]; People v Ibarra, 137 AD3d 1097 , 1098 [2016]).

Leventhal, J.P., Hall, Sgroi and Duffy, JJ., concur.