People v. Santiago , 154 A.D.3d 979 ( 2017 )

People v Santiago (2017 NY Slip Op 07472)

People v Santiago

2017 NY Slip Op 07472

Decided on October 25, 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 October 25, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
BETSY BARROS
VALERIE BRATHWAITE NELSON
LINDA CHRISTOPHER, JJ.

2016-03884

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

v

Abraham Santiago, appellant.

Seymour W. James, Jr., New York, NY (Anita Aboagye-Agyeman of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, William H. Branigan, and Amy E. Markel of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Melendez, J.), dated March 18, 2016, 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.

Contrary to the defendant's contention, the Supreme Court did not improvidently exercise its discretion in denying his application for a downward departure from the presumptive risk assessment level under the Sex Offender Registration Act (Correction Law article 6-C; hereinafter SORA). In determining a defendant's risk level, a downward departure from the presumptive risk level generally is warranted only if there exists a mitigating circumstance "as a matter of law, of a kind or to a degree not adequately taken into account by the [SORA] guidelines" (People v Gillotti, 23 NY3d 841, 861; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; People v Watson, 95 AD3d 978, 979).

The defendant's satisfactory conduct during his incarceration and his completion of sex offender treatment were facts adequately taken into account under the SORA guidelines, as the defendant was assessed zero points both for risk factors 12 (acceptance of responsibility) and 13 (conduct while confined/supervised) under the risk assessment instrument (see People v Alexander, 144 AD3d 1008; People v DeDona, 102 AD3d 58, 71; People v Riverso, 96 AD3d 1533, 1534; People v Walker, 47 AD3d 692, 694). The defendant has otherwise failed to set forth any mitigating factors warranting a downward departure. Contrary to his contention, he failed to establish that his deportation was, "as a matter of law, an appropriate mitigating factor" (People v Wyatt, 89 AD3d 112, 128; see People v Jara, 150 AD3d 1159; People v Garcia, 144 AD3d 650, 651; People v Rubi, 132 AD3d 650; People v Leshchenko, 127 AD3d 833).

LEVENTHAL, J.P., BARROS, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court