| People v Tineo-Morales |
| 2012 NY Slip Op 08502 [101 AD3d 839] |
| December 12, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Leurys Tineo-Morales, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Edward A. Bannan of counsel), forrespondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), datedSeptember 27, 2011, which, after a hearing, designated him a level two sex offender pursuant toCorrection Law article 6-C.
Ordered that the order is reversed, on the facts and in the exercise of discretion, without costsor disbursements, and the defendant is designated a level one sex offender.
At issue is whether the County Court properly rejected the recommendation of the Board ofExaminers of Sex Offenders for a downward departure from the defendant's presumptive risklevel two designation to a risk level one designation. The evidence in the record established by apreponderance of the credible evidence the mitigating factors supporting that recommendationbased upon information in the presentence report and the case summary (see People v Crandall, 90 AD3d628, 629 [2011]; People vWyatt, 89 AD3d 112, 128 [2011]). Moreover, "based upon an examination of all [of the]circumstances relevant to the offender's risk of reoffense and danger to the community" (People v Madison, 98 AD3d 573,574 [2012]), we conclude that the presence of a number of factors reduce the defendant's risk ofreoffending. These factors include the fact that the defendant had no prior criminal background,that the defendant's relationship with the victim was consensual, that the victim chose to maintainthat relationship after she reached adulthood, and that the defendant appears to be close to hisfamily. Accordingly, the defendant's application for a downward departure from his presumptiverisk level two designation to a risk level one designation should have been granted, and he shouldhave been designated a level one sex offender. Rivera, J.P., Balkin, Leventhal and Hinds-Radix,JJ., concur.