| People v Worrell |
| 2014 NY Slip Op 00333 [113 AD3d 742] |
| January 22, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Seledas Worrell, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (John J. Carmody and Steven A.Bender of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Westchester County(Cacace, J.), entered December 21, 2012, which, after a hearing, designated him a leveltwo sex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
"A downward departure from a sex offender's presumptive risk level generally iswarranted only where 'there exists an aggravating or mitigating factor of a kind, or to adegree, that is otherwise not adequately taken into account' by the Sex OffenderRegistration Act (hereinafter SORA) Guidelines" (People v Martinez-Guzman, 109 AD3d 462, 462 [2013],lv denied 22 NY3d 854 [2013], quoting Sex Offender Registration Act: RiskAssessment Guidelines and Commentary at 4 [2006]; see People v Fryer, 101 AD3d 835, 836 [2012]). " 'Adefendant seeking a downward departure has the initial burden of (1) identifying, as amatter of law, an appropriate mitigating factor, namely, a factor which tends to establisha lower likelihood of reoffense or danger to the community and is of a kind, or to adegree, that is otherwise not adequately taken into account by the SORA Guidelines; and(2) establishing the facts in support of its existence by a preponderance of the evidence' "(People v Martinez-Guzman, 109 AD3d at 462-463, quoting People vFryer, 101 AD3d at 836; see People v Watson, 95 AD3d 978, 979 [2012]). " 'A sexoffender's successful showing by a preponderance of the evidence of facts in support ofan appropriate mitigating factor does not automatically result in the relief requested, butmerely opens the door to the SORA court's exercise of its sound discretion upon furtherexamination of all relevant circumstances' " (People v Harris, 93 AD3d 704, 706 [2012], quoting People v Wyatt, 89 AD3d112, 127 [2011]; see People v Martinez-Guzman, 109 AD3d at 463).
Here, to the extent that the defendant established facts that might warrant adownward departure from his presumptive risk level designation, upon examining all ofthe relevant circumstances, the County Court providently exercised its discretion indenying the defendant's application for a downward departure (see People v Johnson, 109AD3d 972, 973 [2013]; People v Martinez-Guzman, 109 AD3d at 463; People v Carroll, 102 AD3d848, 849 [2013]).
Under the circumstances of this case, the County Court providently exercised itsdiscretion in denying the defendant's request, in effect, for an adjournment of the SORAhearing (see [*2]People v Santiago, 89 AD3d 911, 911 [2011]; People v Sherard, 73 AD3d537, 537 [2010]; People vDi John, 48 AD3d 1302, 1303 [2008]).
Accordingly, the defendant was properly designated a level two sex offender. Rivera,J.P., Dickerson, Leventhal and Hall, JJ., concur.