| People v Martin |
| 2011 NY Slip Op 09105 [90 AD3d 728] |
| December 13, 2011 |
| Appellate Division, Second Department |
| The People of State of New York, Respondent, v WhatkeyMartin, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Anthea H. Bruffeeof counsel; Gamaliel Marrero on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Carroll, J.),dated April 26, 2010, which, after a hearing, designated him a level three sexually violentoffender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The Board of Examiners of Sex Offenders (hereinafter the Board), assessed the defendant asa presumptive level three sexually violent offender based upon a total risk factor score on the riskassessment instrument of 140 points. At a hearing pursuant to Correction Law article 6-C, theSupreme Court deducted 20 points from the defendant's risk assessment score, leaving thedefendant with a risk assessment score of 120 points and a presumptive level three offenderstatus. The defendant requested a downward departure from his presumptive risk level status.The defendant's application was denied and the court designated him a level three sexuallyviolent offender.
On appeal, the defendant contends that the Supreme Court improvidently exercised itsdiscretion in denying his application for a downward departure from his presumptive risk levelstatus. The defendant's contention is without merit.
A court has the discretion to depart from the presumptive risk level, as determined by use ofthe risk assessment instrument, based upon the facts in the record (see People v Colavito, 73 AD3d1004, 1005 [2010]; People vTaylor, 47 AD3d 907, 907-908 [2008]). However, a court may not downwardly departfrom 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 by the guidelines (see People v Bowden, 88 AD3d972, 972 [2011]; see also Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary, at 4 [2006]).
"The defendant, as the proponent of the application for a downward departure, has the burdenof proving facts establishing the existence of this mitigating factor by a preponderance of theevidence" (People v Bowden, 88 AD3d at 973; see People v Wyatt, 89 AD3d 112, 127 [2011]). The defendant'ssuccessful factual showing does no more than furnish the threshold condition to permit the courtto exercise its discretion to grant or deny the departure application based upon an [*2]examination of all circumstances relevant to the offender's risk ofreoffense and danger to the community (see People v Wyatt at 128; People vBowden, 88 AD3d at 972). A defendant's failure to sustain this initial burden requires thecourt to deny the application for a downward departure (see People v Wyatt at 128).
Here, the defendant failed to demonstrate, by a preponderance of the evidence, the existenceof a mitigating factor of a kind, or to a degree, that was not adequately taken into account by therisk assessment guidelines (id.; see People v Bowden, 88 AD3d at 972; seealso Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4[2006]). Accordingly, the Supreme Court properly denied the defendant's application for adownward departure from his presumptive risk level status (see People v Rosado, 88 AD3d 974 [2011]). Rivera, J.P.,Leventhal, Roman and Sgroi, JJ., concur.