Steven Banks, New York, N.Y. (Lawrence T. Hausman of counsel;Miles Pope on the brief), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel; Diana Teverovskaya on the brief), for respondent.
WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, SANDRA L. SGROI, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (Sullivan, J.), dated June 7, 2010, 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.
The Supreme Court's designation of the defendant as a level three sex offender under the Sex Offender Registration Act (hereinafter SORA) was supported by clear and convincing evidence (see Correction Law article 6-C; People v Dong V. Dao, 9 A.D.3d 401, 401-402). Contrary to the defendant's contention, the court properly assessed him 15 points under risk factor 11 for a history of drug abuse (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 ; People v Quinn, 99 A.D.3d 776; People v Crandall, 90 A.D.3d 628, 630; People v Johnson, 77 A.D.3d 548, 549; People v Gonzalez, 48 A.D.3d 284; see also People v Palmer, 20 N.Y.3d 373, 377-379). The defendant was also properly assessed points under risk factor 7 because he was a stranger to the victim (see People v Hewitt, 73 A.D.3d 880, 881; People v Mabee, 69 A.D.3d 820, 820). The defendant's contention that he was improperly assessed points under that portion of risk factor 12 which accounts for "[n]ot accepted responsibility/refused or expelled from treatment" is without merit. It is undisputed that the defendant was expelled from the prison sex offender counseling program and that he thereafter refused to return to that program (see People v Rouff, 49 A.D.3d 517; People v Lewis, 37 A.D.3d 689; see also People v Mabee, 69 A.D.3d at 820). There is no merit to the defendant's contention that the court, in effect, "double-counted" points with respect to risk factors 12 and 13 (see People v Vaughn, 26 A.D.3d 776; see also People v Stevens, 48 A.D.3d 536; People v Davenport, 38 A.D.3d 634).
The defendant was not entitled to a downward departure. A court has the discretion to downwardly depart from the presumptive risk level in a proceeding pursuant to SORA (see Correction Law article 6-C) only when the defendant makes a twofold showing (see People v Arroyo, 105 A.D.3d 926). The defendant must first identify, 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" (People v Wyatt, 89 A.D.3d 112, 124; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006 ed]). Next, the defendant must prove by a preponderance of the evidence the facts necessary to support the applicability of that mitigating factor (see People v Wyatt, 89 A.D.3d at 124). In the absence of this twofold showing, the court lacks discretion to depart from the presumptive risk level (see People v Arroyo, 105 A.D.3d 926; People v Shephard, 101 A.D.3d 978, 979; People v ...