People v. Bower — 157 A.D.3d 833

Majority

p. 833

The People of the State of New York, Respondent, v Ronald Bower, Appellant.

[66 NYS3d 634]

Appeal by the defendant from an order of the County Court, Nassau County (Teresa K. Corrigan, J.), dated April 2, 2014, 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.

In this proceeding pursuant to the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]), the County Court assessed the defendant 10 points under risk factor 12 (acceptance of responsibility) and 10 points under risk factor 13 (conduct while confined). The assessment of these points was proper, as it was supported by clear and convincing evidence in the record, including evidence that the defendant still maintained his innocence of the crimes for which he was convicted after more than 20 years of incarceration, and evidence that he committed three tier II disciplinary violations and one tier III disciplinary violation while incarcerated (see People v Anderson, 137 AD3d 988 [2016]; People v Mosley, 106 AD3d 1067 , 1068 [2013]; People v Lewis, 37 AD3d 689 , 690 [2007]).

The County Court properly denied the defendant’s application for a downward departure from his presumptive risk level designation. A downward departure from a sex offender’s presumptive risk level generally is warranted only where there exists a mitigating factor of a kind or to a degree not otherwise adequately taken into account by the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary (2006) (hereinafter SORA Guidelines) (see People v Fryer, 101 AD3d 835 , 836 [2012]). 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 [SORA] Guidelines; and (2) establishing the facts in

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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 defendant failed to establish, by a preponderance of the evidence, the existence of such a mitigating factor (see SORA Guidelines at 4; People v Moultrie, 147 AD3d 800 , 801 [2017]; People v Simmons, 146 AD3d 912 , 913 [2017]).

The defendant’s remaining contentions are without merit.

Accordingly, the County Court properly designated the defendant a level three sex offender.

Rivera, J.R, Cohen, Hinds-Radix and Brathwaite Nelson, JJ., concur.

Cases cited

People v. Anderson 137 AD3d 988 N.Y. App. Div. 2016-03-16 p. 833
People v. Mosley 106 AD3d 1067 N.Y. App. Div. 2013-05-29 at 1068 p. 833
People v. Fryer 101 AD3d 835 N.Y. App. Div. 2012-12-12 at 836 p. 833
People v. Wyatt 89 AD3d 112 N.Y. App. Div. 2011-10-18 at 128 p. 834
People v. Gillotti 23 NY3d 841 N.Y. 2014-06-10 at 861 p. 834
People v. Moultrie 147 AD3d 800 N.Y. App. Div. 2017-02-01 at 801 p. 834
People v. Simmons 146 AD3d 912 N.Y. App. Div. 2017-01-18 at 913 p. 834