People v. Nieves , 149 A.D.3d 881 ( 2017 )

People v Nieves (2017 NY Slip Op 02834)

People v Nieves

2017 NY Slip Op 02834

Decided on April 12, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 12, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
SHERI S. ROMAN
ROBERT J. MILLER
COLLEEN D. DUFFY, JJ.

2015-02611

[*1]People of State of New York, respondent,

v

Corey Nieves, appellant.

Seymour W. James, Jr., New York, NY (Svetlana M. Kornfeind of counsel; Jacob Hansen on the brief), for appellant.

Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and Alexander Fumelli of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Richmond County (Mattei, J.), dated March 20, 2015, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed, without costs or disbursements.

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 [Sex Offender Registration Act: Risk Assessment Guidelines and Commentary; hereinafter Guidelines]; and (2) establishing the facts in support of its existence by a preponderance of the evidence" (People v Wyatt, 89 AD3d 112, 128; see People v Gillotti, 23 NY3d 841, 861; People v Wallace, 144 AD3d 775). 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 sustain his burden of proof in support of his request for a downward departure. The mitigating circumstances identified by the defendant either were adequately taken into account by the Guidelines, or were not proven by a preponderance of the evidence (see People v Velasquez, 145 AD3d 924; People v Rossano, 140 AD3d 1042, 1043; People v Sanchez, 138 AD3d 946, 947; People v Santiago, 137 AD3d 762, 764). Accordingly, the Supreme Court properly denied his request for a downward departure.

RIVERA, J.P., ROMAN, MILLER and DUFFY, JJ., concur.

ENTER: Aprilanne Agostino Clerk of the Court