People v. Stevenson , 2020 NY Slip Op 05787 ( 2020 )

People v Stevenson (2020 NY Slip Op 05787)

People v Stevenson

2020 NY Slip Op 05787

Decided on October 14, 2020

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 14, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
JOHN M. LEVENTHAL
JEFFREY A. COHEN
SYLVIA O. HINDS-RADIX, JJ.

2016-13324

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

v

Nathan Stevenson, appellant.

Janet E. Sabel, New York, NY (Ellen Dille of counsel), for appellant.

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

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Richmond County (Mario F. Mattei, J.), dated November 15, 2016, 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.

Following a hearing held pursuant to the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]), the Supreme Court designated the defendant a level three sex offender. On this appeal, the defendant challenges the court's denial of his request for a downward departure from his presumptive risk level.

We agree with the Supreme Court's determination denying 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] 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; see also SORA: Risk Assessment Guidelines and Commentary at 4 [2006]). 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 overassessment of the defendant's dangerousness and risk of sexual recidivism (see People v Gillotti, 23 NY3d at 861; People v Champagne, 140 AD3d 719, 720). Here, the defendant failed to prove the existence of an appropriate mitigating factor by a preponderance of evidence (see People v McGhee, 179 AD3d 954, 955; People v Garcia, 176 AD3d 1240, 1241; People v Santos, 174 AD3d 658, 659).

DILLON, J.P., LEVENTHAL, COHEN and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court