| People v Ologbonjaiye |
| 2013 NY Slip Op 05807 [109 AD3d 804] |
| September 11, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Chris Ologbonjaiye, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and LindaBreen of counsel; Diana Teverovskaya on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County(Sullivan, J.), dated June 7, 2010, 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.
The Supreme Court's designation of the defendant as a level three sex offender underthe Sex Offender Registration Act (hereinafter SORA) was supported by clear andconvincing evidence (see Correction Law art 6-C; People v Dong V. Dao, 9AD3d 401, 401-402 [2004]). Contrary to the defendant's contention, the courtproperly assessed him 15 points under risk factor 11 for a history of drug abuse (seeSex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15[2006]; People v Quinn, 99AD3d 776 [2012]; People vCrandall, 90 AD3d 628, 630 [2011]; People v Johnson, 77 AD3d 548, 549 [2010]; People v Gonzalez, 48 AD3d284 [2008]; see also Peoplev Palmer, 20 NY3d 373, 377-379 [2013]). The defendant was also properlyassessed points under risk factor 7 because he was a stranger to the victim (see People v Hewitt, 73 AD3d880, 881 [2010]; People vMabee, 69 AD3d 820, 820 [2010]). The defendant's contention that he wasimproperly assessed points under that portion of risk factor 12 which accounts for "[n]otaccepted responsibility/refused or expelled from treatment" is without merit. It isundisputed that the defendant was expelled from the prison sex offender counselingprogram and that he thereafter refused to return to that program (see People v Rouff, 49 AD3d517 [2008]; People vLewis, 37 AD3d 689 [2007]; see also People v Mabee, 69 AD3d at820). There is no merit to the defendant's contention that the court, in effect,"double-counted" points with respect to risk factors 12 and 13 (see People v Vaughn, 26AD3d 776 [2006]; see alsoPeople v Stevens, 48 AD3d 536 [2008]; People v Davenport, 38 AD3d 634 [2007]).
The defendant was not entitled to a downward departure. A court has the discretionto downwardly depart from the presumptive risk level in a proceeding pursuant to SORA(see Correction Law art 6-C) only when the defendant makes a twofold showing(see People v Arroyo, 105AD3d 926 [2013]). The defendant must first 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: [*2]Risk Assessment Guidelines and Commentary at 4 [2006]).Next, the defendant must prove by a preponderance of the evidence the facts necessary tosupport the applicability of that mitigating factor (see People v Wyatt, 89 AD3dat 124). In the absence of this twofold showing, the court lacks discretion to depart fromthe presumptive risk level (seePeople v Arroyo, 105 AD3d 926 [2013]; People v Shephard, 101 AD3d 978, 979 [2012]; Peoplev Wyatt, 89 AD3d at 124). Here, the defendant failed to make the requisiteshowings. Consequently, the Supreme Court did not have the discretion to depart fromthe presumptive risk level (seePeople v Arroyo, 105 AD3d 926 [2013]; People v Shephard, 101 AD3d 978 [2012]). Mastro, J.P.,Hall, Lott and Sgroi, JJ., concur.