Laurette D. Mulry, Riverhead, NY (Kirk R. Brandt of counsel),
Timothy D. Sini, District Attorney, Riverhead, NY (Elena L.
Tomaro and Thomas Costello of counsel), for respondent.
C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN,
FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.
DECISION & ORDER
by the defendant from an order of the County Court, Suffolk
County (Barbara Kahn, J.), dated October 24, 2018, which,
after a hearing, designated him a level three sex offender
pursuant to Correction Law article 6-C.
that the order is affirmed, without costs or disbursements.
defendant was convicted, upon a jury verdict, of sodomy in
the first degree and sex abuse in the first degree. After a
hearing pursuant to the Sex Offender Registration Act
(See Correction Law art 6-C; hereinafter SORA), the
defendant was designated a level three sex offender based
upon the assessment of a total of 170 points. On appeal, the
defendant challenges the assessment of points under risk
factors 9, 12, 13, and 14, and argues that the County Court
should have granted his request for a downward departure.
agree with the County Court's assessment of points under
risk factors 9, 12, 13, and 14. The court properly assessed
the defendant 30 points under risk factor 9, as the People
established, by clear and convicting evidence, that the
defendant was previously convicted of a sex offense (see
People v King, 74 A.D.3d 1162, 1163); 15 points under
risk factor 12, as the People established, by clear and
convicting evidence, that the defendant failed to accept
responsibility for his actions (see People v Diaz,
169 A.D.3d 727, 727; People v Kearns, 68 A.D.3d
1713, 1714); 20 points under risk factor 13, as the People
established, by clear and convincing evidence, that the
defendant's conduct while incarcerated was
unsatisfactory, and included sexual misconduct (see
People v Marquez, 165 A.D.3d 986, 987); and 15 points
under risk factor 14 because the defendant was released
without any parole, probation, or supervision (see People
v Jean-Bart, 145 A.D.3d 690, 691).
agree with the County Court's denial of the
defendant's request for a downward departure. 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 Risk Assessment] 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 ). 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 over-assessment 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, 720). Although advanced age
can constitute a basis for a downward departure (see
SORA: Risk Assessment Guidelines and Commentary at 5 ),
the defendant failed to establish by a preponderance of the
evidence that his age at the time of the SORA determination,
53 years old, "resulted in the over-assessment of his
risk to public safety" (People v
Rocano-Quintuna, 149 A.D.3d 1114, 1115 [internal
quotation marks omitted]).
we agree with the County Court's determination
designating the ...