| People v Henry |
| 2013 NY Slip Op 03309 [106 AD3d 796] |
| May 8, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Darion Henry, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J.Dennehy, and Gamaliel Marrero of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County(D'Emic, J.), dated December 9, 2011, which, after a hearing, designated him a level twosex 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 New York's Sex Offender Registration Act (Correction Law art6-C [hereinafter SORA]) only after a defendant makes a twofold showing. First, adefendant must identify, as a matter of law, an appropriate mitigating factor, namely, afactor which "tends to establish a lower likelihood of reoffense or danger to thecommunity and is of a kind, or to a degree, that is otherwise not adequately taken intoaccount by the [SORA] Guidelines" (People v Wyatt, 89 AD3d 112, 124 [2011]). Second, adefendant must prove by a preponderance of the evidence the facts necessary to supportthat mitigating factor (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, 978-979 [2012]; People v Wyatt, 89 AD3d at 124). Contrary tothe defendant's contention, he failed make the requisite twofold showing and, therefore,the Supreme Court did not have the discretion to depart from the presumptive risk level(see People v Shephard, 101 AD3d at 979). Rivera, J.P., Leventhal, Austin andMiller, JJ., concur.