Submitted - October 30, 2019
Laurette D. Mulry, Riverhead, NY (Kirk R. Brandt of counsel),
Timothy D. Sini, District Attorney, Riverhead, NY (Elizabeth
Miller of counsel), for respondent.
REINALDO E. RIVERA, J.P. JOSEPH J. MALTESE BETSY BARROS
VALERIE BRATHWAITE NELSON ANGELA G. IANNACCI, JJ.
DECISION & ORDER
by the defendant from an order of the County Court, Suffolk
County (Barbara Kahn, J.), dated August 10, 2018, which,
after a hearing, designated him a level two sex offender
pursuant to Correction Law article 6-C.
that the order is affirmed, without costs or disbursements.
establishing an offender's appropriate risk level under
the Sex Offender Registration Act (see Correction
Law art 6-C; hereinafter SORA), "[t]he People 'bear
the burden of proving the facts supporting the
determinations' by clear and convincing evidence"
(People v Pettigrew, 14 N.Y.3d 406, 408, quoting
Correction Law § 168-n). Contrary to the
defendant's contention, he was properly assessed points
under risk factor 7 for a relationship with the victim that
arose in the context of a professional relationship and was
an abuse of such relationship (see People v Somodi,
170 A.D.3d 1056; People v Cuesta, 65 A.D.3d 1113).
The People met their burden as to risk factor 7 through
evidence that the defendant was employed as a
paraprofessional at the high school that the victim attended
and that he was introduced to the victim by the victim's
friend, who was a student in his class.
we agree with the County Court's determination denying
the defendant's request for a downward departure from his
presumptive risk level. 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 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 841, 861; see also SORA:
Risk Assessment Guidelines and Commentary at 4 
[hereinafter the Guidelines). If the defendant makes that
twofold showing, the court must exercise its discretion by
weighing the mitigating factor to determine whether the
totality of the circumstances warrants a departure to avoid
an overassessment of the defendant's dangerousness and
risk of sexual recidivism (see People v Gillotti, 23
N.Y.3d at 861; People v Champagne, 140 A.D.3d 719,
the defendant failed to preserve for appellate review his
contentions that he is entitled to a downward departure
because the offense did not involve the use of force and
because he did not have an uncontrolled impulse to engage in
improper sexual behavior, as he failed to raise these
contentions at the SORA hearing (see People v
Uphael, 140 A.D.3d 1143, 1144-1145). In any event, the
defendant's contentions are without merit. Further, the
mitigating factors that were identified and properly
preserved for appellate review by the defendant were either
adequately taken into account by the Guidelines or did not
warrant a downward departure from the presumptive risk level
(see People v Uphael, 140 A.D.3d at 1144-1145;
People v Ibarra, 137 A.D.3d 1097, 1098).
we agree with the County Court's designation of the