| People v Arroyo |
| 2013 NY Slip Op 02553 [105 AD3d 926] |
| April 17, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Manuel Arroyo, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff and StevenBender of counsel), for plaintiff.
Appeal by the defendant from an order of the Supreme Court, Westchester County(Cohen, J.), entered August 13, 2010, which, after a hearing, designated him a level threesex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
A court has the discretion to downwardly depart from the presumptive risk level in aproceeding pursuant to the Sex Offender Registration Act (Correction Law art 6-C;hereinafter SORA) only after a defendant makes a twofold showing. First, a defendantmust identify, 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 akind, or to a degree, that is otherwise not adequately taken into account by the [SORA]Guidelines" (People vWyatt, 89 AD3d 112, 124 [2011]). Second, a defendant must prove by apreponderance of the evidence the facts necessary to support the applicability of thatmitigating factor (see id. at 114, 124). In the absence of that twofold showing,the court lacks discretion to depart from the presumptive risk level (see People v Shephard, 101AD3d 978, 979 [2012]; People v Wyatt, 89 AD3d at 124). Contrary to thedefendant's contention, he to make the requisite showings and, therefore, the SupremeCourt did not have the discretion to depart from the presumptive risk level (seePeople v Shephard, 101 AD3d at 978). Skelos, J.P., Leventhal, Hall and Lott, JJ.,concur.