| People v Bowden |
| 2011 NY Slip Op 07616 [88 AD3d 972] |
| October 25, 2011 |
| Appellate Division, Second Department |
| The People of State of New York, Respondent, v AnthonyBowden, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and AnneGrady of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.),dated December 5, 2008, which, after a hearing, designated him a level two sex offenderpursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The Supreme Court's designation of the defendant as a level two sex offender, based uponthe aggregation of points under applicable risk factors on the risk assessment instrument, wassupported by clear and convincing evidence (see Correction Law § 168-d [3]; People v Pettigrew, 14 NY3d 406,408-409 [2010]; People v Crum, 81AD3d 619 [2011]; People vKing, 80 AD3d 681 [2011]).
The defendant contends that the Supreme Court erred in denying his application for adownward departure from risk level two to risk level one. "[A] court may not [downwardly]depart from the presumptive risk level unless it concludes that there exists . . . [a]mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account bythe guidelines" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at4 [2006] [hereinafter commentary]). The commentary provides that one such mitigating factormight be present "in an appropriate case and in those instances where (i) the victim's lack ofconsent is due only to inability to consent by virtue of age and (ii) scoring 25 points [under riskfactor 2] results in an over-assessment of the offender's risk to public safety" (id. at 9).The defendant, as the proponent of the application for a downward departure, has the burden ofproving facts establishing the existence of this mitigating factor by a preponderance of theevidence; satisfaction of this burden is the threshold condition to the court's exercise of discretionto grant or deny the application for downward departure, while failure to meet the burdenrequires denial of the application (see People v Wyatt, 89 AD3d 112 [2011]).
Here, the Supreme Court denied the defendant's application for a downward departure uponfinding that he had failed to meet his "burden of providing clear and convincing evidence" insupport of this mitigating factor. While the Supreme Court did not make a finding based upon thepreponderance of the evidence standard, remittal is not required where, as here, the record issufficient for this Court to make its own findings of fact and conclusions of law (see People vVega, [*2]79 AD3d 718, 719 [2010]). On the recordpresented, the defendant failed to meet his burden of establishing by a preponderance of theevidence that the victim's lack of consent was "due only to inability to consent by virtueof age" and that the points under risk factor 2 resulted in an "over-assessment" of his risk topublic safety (commentary at 9 [emphasis added]). In addition, the defendant failed to adducefacts in support of any other mitigating factor not adequately taken into account by the riskassessment instrument. Accordingly, a downward departure was not warranted, and the SupremeCourt properly denied the defendant's application (see People v Wyatt, 89 AD3d112 [2011]). Angiolillo, J.P., Florio, Belen and Roman, JJ.,concur.