People v. Morgan , 998 N.Y.S.2d 660 ( 2015 )

People v Morgan (2015 NY Slip Op 00512)

People v Morgan

2015 NY Slip Op 00512

Decided on January 21, 2015

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 January 21, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
JOHN M. LEVENTHAL
CHERYL E. CHAMBERS
COLLEEN D. DUFFY, JJ.

2013-10149

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

v

William Morgan, appellant.

Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated October 24, 2013, 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.

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]; 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, 861-862).

Here, the defendant failed to establish facts in support of his claim that his response to treatment had been exceptional, so as to warrant a downward departure (see People v Coleman, 122 AD3d 599; People v Tisman, 116 AD3d 1018, 1019).

Accordingly, the County Court properly denied the defendant's request for a downward departure from his presumptive designation as a level three sex offender.

DILLON, J.P., LEVENTHAL, CHAMBERS and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court