M. Baker, New York, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M.
Castellano, Johnnette Traill, Joseph N. Ferdenzi, and
Jonathan K. Yi of counsel), for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, COLLEEN D.
DUFFY, BETSY BARROS, JJ.
DECISION & ORDER
by the defendant from an order of the Supreme Court, Queens
County (Kron, J.), dated December 7, 2015. The order, upon,
in effect, renewal and reargument, adhered to an original
determination in an order dated September 25, 2015, made
after a hearing, designating the defendant a level three sex
offender pursuant to Correction Law article 6-C.
that the order dated December 7, 2015, is affirmed, without
costs or disbursements.
2015, the defendant pleaded guilty to 3 counts of promoting a
sexual performance of a child, and 1, 223 counts of
possessing a sexual performance of a child, and was sentenced
to a term of 10 years' probation. After a hearing
pursuant to the Sex Offender Registration Act (see
Correction Law article 6-C [hereinafter SORA]), the Supreme
Court determined that the defendant was a presumptive level
three sex offender based on the defendant's total score
on the risk assessment instrument, and denied the
defendant's request for a downward departure. Thereafter,
the defendant submitted a motion to the court requesting that
it reconsider its determination. In support of his motion,
the defendant submitted updated reports from his treatment
providers stating that the defendant has been able to
overcome his desire to view child pornography "to an
exceptional degree, " and that he was at low risk to
reoffend. In the order appealed from, the court, upon, in
effect, renewal and reargument, denied the defendant's
motion on the ground that, "[n]othing in the new motion
changes the correctness of the original SORA assessment, or
otherwise warrants a deviation from the original
downward departure from a sex offender's presumptive risk
level generally is only warranted where "there exists...
[a] mitigating factor of a kind, or to a degree, that is
otherwise not adequately taken into account" by the SORA
Guidelines (SORA Guidelines at 4 ; see People v
Gillotti, 23 N.Y.3d 841, 861; People v Marsh,
116 A.D.3d 680, 681-682). 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 otherwise not adequately taken into account
by the Guidelines; and (2) establishing the facts in support
of its existence by a preponderance of the evidence"
(People v Wyatt, 89 A.D.3d 112, 128; see People
v Gillotti, 23 N.Y.3d at 861). "A sex
offender's successful showing by a preponderance of the
evidence of facts in support of an appropriate mitigating
factor does not automatically result in the relief requested,
but merely opens the door to the SORA court's exercise of
its sound discretion upon further examination of all relevant
circumstances" (People v Sanchez, 144 A.D.3d
880, 881 [internal quotation marks omitted]).
to the defendant's contention, the record does not
demonstrate that the Supreme Court failed to consider the
materials submitted by the defendant in support of his motion
which was, in effect, for leave to renew and reargue his
request for a downward departure. The defendant also contends
that his exceptional response to sex offender treatment
constituted a mitigating factor warranting a downward
departure from the presumptive risk level (see SORA
Guidelines at 17). To the extent that the defendant
established facts that might warrant a downward departure
from his presumptive risk level designation, upon examining
all of the relevant circumstances, the court providently
exercised its discretion in determining that the defendant
was not entitled to a downward departure (see People v
Sanchez, 144 A.D.3d 880; People v Rukasov, 132
A.D.3d 748, 749).
defendant further argues that the assessment of points under
risk factor seven over-assessed his danger to the community
such that a downward departure was warranted. Although in
some cases involving offenders who possessed child
pornography, the assessment of points under risk factor seven
may result in an overassessment of a defendant's risk to
public safety, a downward departure is not warranted under
the circumstances of this case (see People v
Gillotti, 23 N.Y.3d at 861; People v Johnson,
11 N.Y.3d 416, 421; People v Rossano, 140 A.D.3d
1042, 1043). Significantly, the defendant was found in
possession of more than 1, 200 still images and 21 video
clips depicting children being raped and sexually abused
(cf. People v McCabe, 142 A.D.3d 1379, 1380-1381;
People v Rossano, 140 A.D.3d at 1043; People v
Labrake, 121 A.D.3d ...