| People v Violate |
| 2013 NY Slip Op 08604 [112 AD3d 899] |
| December 26, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Gilbert Violate, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and LindaBreen of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County(Guzman, J.), dated September 22, 2011, which, after a hearing, designated him a leveltwo sex offender pursuant to Correction Law article 6-C.
Ordered that order is affirmed, without costs or disbursements.
A downward departure from a sex offender's presumptive risk level generally is onlywarranted where there exists a mitigating factor of a kind, or to a degree, that is nototherwise adequately taken into account by the Sex Offender Registration Act (seeSex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4[2006]; People v Guzman,110 AD3d 863 [2013]; People v Fryer, 101 AD3d 835, 836 [2012]; People v Fernandez, 91 AD3d737 [2012]). A sex offender seeking a downward departure has the initial burden ofshowing the existence of an appropriate mitigating factor in order to "establish thethreshold condition for the SORA court's exercise of its discretion" to grant or deny theapplication (People vWyatt, 89 AD3d 112, 128 [2011]). "[T]he sex offender meets this thresholdcondition by satisfying a twofold showing: (1) identifying, as a matter of law, anappropriate mitigating factor, namely, a factor which tends to establish a lower likelihoodof reoffense or danger to the community and is of a kind, or to a degree, that is otherwisenot adequately taken into account by the Guidelines; and (2) establishing the facts insupport of its existence by a preponderance of the evidence" (id. at 128; see People v Guzman, 110AD3d 863 [2013]; People v Fryer, 101 AD3d at 836). Here, the defendantfailed to make the requisite twofold showing (see People v Benjamin, 105 AD3d 926, 927 [2013];People v Fryer, 101 AD3d at 836; People v Harris, 93 AD3d 704, 706 [2012]; People vWyatt, 89 AD3d at 129-130; People v Modica, 80 AD3d 590, 592 [2011]). Accordingly,the Supreme Court lacked the discretion to depart from the presumptive risk level (see People v Henry, 106 AD3d796 [2013]; People vArroyo, 105 AD3d 926 [2013]; People v Shephard, 101 AD3d 978, 979 [2012]). Eng, P.J.,Skelos, Dillon and Sgroi, JJ., concur.