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People v. Wilson

156 A.D.3d 734 Court N.Y. App. Div. Decision date 2017-12-13 English

Judges Balkin, J.P., Leventhal, Austin and Iannacci, JJ., concur.

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p. 734
The People of the State of New York, Respondent, v Salamea Wilson, Appellant.
[64 NYS3d 902]

Appeal by the defendant from an order of the Supreme Court, Kings County (Murphy, J.), dated August 18, 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.

The Supreme Court properly rejected the defendant’s request for a downward departure from the presumptive risk level. A court determining a defendant’s risk level under the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]) may not downwardly depart from the presumptive risk level unless the defendant first identifies, and proves by a preponderance of the evidence the facts in support of, “a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the [Sex Offender Registration Act: Risk Assessment Guidelines and Commentary (2006)

p. 735
(hereinafter Guidelines)]” (People v Lathan, 129 AD3d 686 , 687 [2015] [internal quotation marks omitted]; see People v Warren, 152 AD3d 551 , 551 [2017]; Guidelines at 4). Here, the defendant failed to identify a proper mitigating factor (see People v Warren, 152 AD3d at 551 ; People v Rodriguez, 145 AD3d 489 , 490 [2016]; People v Roldan, 140 AD3d 411 , 412 [2016]). Accordingly, there was no basis for a downward departure, and the court properly designated the defendant a level two sex offender (see People v Warren, 152 AD3d at 551 ).

Balkin, J.P., Leventhal, Austin and Iannacci, JJ., concur.

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