| People v Reynolds |
| 2011 NY Slip Op 08921 [90 AD3d 630] |
| December 6, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Kenneth Reynolds, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Jason R. Richards of counsel; JonathanG. Krug on the brief), for respondent.
Appeal by the defendant from an order of the County Court, Nassau County (Calabrese, J.),entered August 11, 2010, which, after a hearing, designated him a level three sex offenderpursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
At the initial hearing to determine the defendant's risk level pursuant to the Sex OffenderRegistration Act (see Correction Law art 6-C [hereinafter SORA]), the County Courtdesignated the defendant a level three sex offender based on a presumptive override for a priorfelony conviction of a sex crime, holding that the override resulted in a "mandatory" level threedesignation. On the appeal from that order, this Court reversed and remitted to the County Courtfor a new hearing and determination, affording the defendant an opportunity to present mitigatingcircumstances in support of an application for downward departure (see People v Reynolds, 68 AD3d955, 956 [2009]). Upon remittal, the defendant presented evidence and arguments in supportof an application for a downward departure to risk level two. The County Court determined thatthe defendant failed to establish a mitigating factor warranting the departure and designated hima level three sex offender. We affirm.
Contrary to the defendant's contention, the County Court applied the correct standard inconsidering his application for a downward departure (see People v Wyatt, 89 AD3d 112, 127 [2d Dept 2011]). Thedefendant failed to satisfy the threshold condition of identifying an appropriate mitigating factorwhich tends to establish a lower likelihood of his reoffense or danger to the community and is ofa kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines(id. at 128, see Sex Offender Registration Act: Risk Assessment Guidelines andCommentary, at 4 [2006]). Further, the defendant's prior conviction of a felony sex crime wasproperly used as both an override factor and as a basis upon which to add 30 points for risk factor9 on the risk assessment instrument (seee.g. People v Gilbert, 78 AD3d 1584, 1585 [2010]; People v Barrier, 58 AD3d1086, 1087 [2009]).
The defendant's contention that the County Court unfairly precluded his father fromaddressing the court after it had rendered its determination at the SORA hearing is [*2]unpreserved for appellate review (see People v Windham, 10 NY3d801, 802 [2008]), and in any event, is without merit. The court did not deny the defendanthis right to present relevant evidence at the hearing (see Correction Law § 168-n[3]).
The defendant was afforded meaningful representation at the SORA hearing (see Peoplev Baldi, 54 NY2d 137, 147 [1981]; People v Bowles, 89 AD3d 171, 181 [2d Dept2011]). Dillon, J.P., Angiolillo, Florio and Dickerson, JJ., concur.