| People v Henry |
| 2013 NY Slip Op 03977 [107 AD3d 678] |
| June 5, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Eldon Henry, Appellant. |
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Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J.Dennehy of counsel; G. Aaron Leibowitz on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Gary,J.), dated October 30, 2009, which, after a hearing, designated him a level three sexoffender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
It is uncontested that the People met their burden of establishing, by clear andconvincing evidence, that the defendant had previously been convicted of a felony sexcrime (see People v Carter,85 AD3d 995, 995 [2011]; see also People v Eaton, 105 AD3d 722 [2013]).Therefore, irrespective of the points scored on the Risk Assessment Instrument, thedefendant was presumptively a level three sex offender (see People v Carter, 85AD3d at 995; People vEaton, 105 AD3d 722 [2013]; see also Sex Offender Registration Act:Risk Assessment Guidelines and Commentary at risk factor 9 [3] [2006]).
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 (see People v Arroyo, 105AD3d 926 [2d Dept 2013]). First, a defendant must identify, as a matter of law, anappropriate mitigating factor, namely, a factor which "tends to establish a lowerlikelihood of reoffense or danger to the community and is of a kind, or to a degree, that isotherwise not adequately taken into account by the [SORA] Guidelines" (People v Wyatt, 89 AD3d112, 124 [2011]; see Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary at 4 [2006]). Second, a defendant must prove by apreponderance of the evidence the facts necessary to support the applicability of thatmitigating factor (see People v Wyatt, 89 AD3d at 124). "In the absence of thattwofold showing, the court lacks discretion to depart from the presumptive risk level"(People v Arroyo, 105 AD3d at 926; see People v Shephard, 101 AD3d 978, 979 [2012], lvdenied 21 NY3d 855 [2013]; People v Wyatt, 89 AD3d at 124).
Here, the defendant did not submit evidence to show the existence of any suchmitigating factor. Since the defendant failed to demonstrate, by a preponderance of theevidence, that there existed a mitigating factor of a kind or to a degree not otherwisetaken into account by the SORA guidelines, the Supreme Court lacked the discretion todepart from the presumptive risk level [*2]and properlydesignated the defendant a level three sex offender (see People v Fareira, 80 AD3d 589, 589-590 [2011]; People v King, 74 AD3d1162, 1163 [2010]). Balkin, J.P., Leventhal, Sgroi and Miller, JJ., concur.