| People v Houston |
| 2014 NY Slip Op 08325 [122 AD3d 915] |
| November 26, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Dwayne Houston, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (William Kastin of counsel; Leah Gerstley on thebrief), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Jobloveand Anthea H. Bruffee of counsel; Michael C. Zebrowski on the brief), forrespondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Dwyer,J.), dated March 20, 2013, which, after a hearing, designated him a level two sexoffender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
Under the Sex Offender Registration Act (hereinafter SORA), a court must followthree analytical steps to determine whether to downwardly depart from the presumptiverisk level. First, the court must decide whether the mitigating circumstances alleged bythe defendant are, as a matter of law, of a kind or to a degree not adequately taken intoaccount by the SORA guidelines (see People v Gillotti, 23 NY3d 841 [2014]; People v Wyatt, 89 AD3d112, 128 [2011]). Second, the court must decide whether the defendant has adducedsufficient evidence to meet his or her burden of proof in establishing that the allegedmitigating circumstances actually exist (see People v Gillotti, 23 NY3d 841 [2014]; People vWyatt, 89 AD3d at 128). The defendant must prove the facts supporting a downwarddeparture by a preponderance of the evidence (see People v Gillotti, 23 NY3d 841 [2014]; People vWyatt, 89 AD3d at 128). And third, if the defendant "surmounts the first two steps,the law permits a departure, but the court still has discretion to refuse to depart or to granta departure" (People v Gillotti, 23 NY3d at 861; see People v Wyatt, 89AD3d at 128).
Here, the Supreme Court properly determined that the defendant was not entitled to adownward departure and, thus, properly designated him a level two sex offender (see People v Wortham, 119AD3d 666 [2014]). Rivera, J.P., Skelos, Dickerson and Barros, JJ., concur.