| People v Romero |
| 2014 NY Slip Op 00098 [113 AD3d 605] |
| January 8, 2014 |
| Appellate Division, Second Department |
| The People of State of New York,Respondent, v Gabriel Romero, Appellant. |
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andLinda Breen of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County(Sullivan, J.), dated February 6, 2012, which, after a hearing, designated him a level threesexually violent offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
In determining a defendant's risk level pursuant to the Sex Offender Registration Act(Correction Law art 6-C [hereinafter SORA]), "[a] downward departure from a sexoffender's presumptive risk level generally is only warranted where there exists amitigating factor of a kind, or to a degree, that is not otherwise adequately taken intoaccount by the SORA Guidelines" (People v Watson, 95 AD3d 978, 979 [2012]; seeSex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4[2006]). A defendant seeking a downward departure has the initial burden of "(1)identifying, 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; and (2) establishing the facts in support of its existence by a preponderanceof the evidence" (People vWyatt, 89 AD3d 112, 128 [2011]).
Here, contrary to the defendant's contention, he failed to show that his expecteddeportation was, "as a matter of law, an appropriate mitigating factor" (id.; see People v Kachatov, 106AD3d 973, 973 [2013]). Accordingly, the defendant was not entitled to a downwarddeparture from the presumptive risk level. Balkin, J.P., Lott, Austin and Miller, JJ.,concur.