| People v Benjamin |
| 2013 NY Slip Op 02554 [105 AD3d 926] |
| April 17, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Franklin Benjamin, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and LindaBreen of counsel; Daniel Berman on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Foley,J.), dated August 4, 2011, which, after a hearing, designated him a level two sexuallyviolent offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The defendant contends that the Supreme Court erred in denying his application,following a risk assessment hearing, for a downward departure from a presumptive risklevel two designation to a risk level one designation pursuant to the Sex OffenderRegistration Act (see Correction Law art 6-C; hereinafter SORA). A court hasthe discretion to downwardly depart from the presumptive risk level in a SORAproceeding only after a defendant makes a twofold showing. First, the defendant mustidentify "as a matter of law, an appropriate mitigating factor, namely, a factor whichtends 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 theGuidelines" (People vWyatt, 89 AD3d 112, 128 [2011]; see Sex Offender Registration Act:Risk Assessment Guidelines and Commentary at 4 [2006]). Second, the defendant mustprove by a preponderance of the evidence the facts necessary to support that mitigatingfactor (see People v Wyatt, 89 AD3d at 128).
Here, the defendant failed to satisfy the threshold condition of identifying anappropriate mitigating factor. The scholarly articles and other publications cited by thedefendant in his appellate brief do not constitute "relevant materials and evidencesubmitted by the sex offender" (Correction Law § 168-n [3]), and are therefore"outside the record on appeal" (People v DeDona, 102 AD3d 58, 70 [2012]). Since thedefendant failed to establish before the Supreme Court that any of the factors he cited"tend[ ] to establish a lower likelihood of reoffense or danger to the community"(People v Wyatt, 89 AD3d at 128), the Supreme Court properly denied thedefendant's application for a downward departure (see People v Shephard, 101 AD3d 978, 978-979 [2012]).Mastro, J.P., Austin, Cohen and Miller, JJ., concur.