People v. Sanchez , 28 N.Y.S.3d 621 ( 2016 )

People v Sanchez (2016 NY Slip Op 02977)

People v Sanchez

2016 NY Slip Op 02977

Decided on April 20, 2016

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 20, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
ROBERT J. MILLER
SYLVIA O. HINDS-RADIX
HECTOR D. LASALLE, JJ.

2014-01510

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

v

Christopher Sanchez, appellant.

Seymour W. James, Jr., New York, NY (Laura Lieberman Cohen of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Jeanette Lifschitz of counsel; Lorrie A. Zinno on the brief), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Knopf, J.), dated February 10, 2014, 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.

In seeking a departure from the presumptive risk level, a defendant must first identify a mitigating circumstance or circumstances "of a kind or to a degree not adequately taken into account by the [Sex Offender Registration Act] guidelines" (People v Gillotti, 23 NY3d 841, 861; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter the Guidelines]). The defendant then has the burden of proving by a preponderance of the evidence the existence of those circumstances in his or her case (see People v Gillotti, 23 NY3d at 861, 864; People v Wyatt, 89 AD3d 112, 128). If the defendant makes that two-fold showing, the court must determine whether the presumptive risk level overassesses the danger presented by the defendant and the risk of reoffense and, thus, whether a downward departure is warranted (see People v Gillotti, 23 NY3d at 861).

Here, 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 Santiago, ____ AD3d _____, 2016 NY Slip Op 01475 [2d Dept 2016]). Accordingly, the Supreme Court properly denied the defendant's application for a downward departure.

RIVERA, J.P., MILLER, HINDS-RADIX and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court