| People v Woods |
| 2015 NY Slip Op 00859 [125 AD3d 622] |
| February 4, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Derek Woods, Appellant. |
Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas Constant of counsel),for respondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn,J.), dated June 27, 2013, which, after a hearing, designated him a level two sex offenderpursuant 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 a mitigating factor of a kind, or to a degree, that isotherwise not adequately taken into account by the Sex Offender Registration Act(hereinafter SORA) Guidelines (see Sex Offender Registration Act: RiskAssessment Guidelines and Commentary at 4 [2006]; People v Worrell, 113 AD3d 742, 742 [2014]; People v Fryer, 101 AD3d835, 836 [2012]). When a defendant seeks a downward departure, he or she has theinitial burden of "(1) identifying, as a matter of law, an appropriate mitigating factor,namely, a factor which tends to establish a lower likelihood of reoffense or danger to thecommunity and is of a kind, or to a degree, that is otherwise not adequately taken intoaccount by the SORA Guidelines; and (2) establishing the facts in support of itsexistence by a preponderance of the evidence" (People v Fryer, 101 AD3d at 836;see People v Gillotti, 23NY3d 841, 861 [2014]). However, even if the defendant is successful in doing so,the requested downward departure is not automatically granted (see People vGillotti, 23 NY3d at 861; People v Wyatt, 89 AD3d 112, 121 [2011]). "Rather, uponsuch a showing, the court is authorized to exercise its sound discretion in determiningwhether, under all the circumstances of the case, the requested departure should begranted or denied" (People v Wyatt, 89 AD3d at 121).
Here, the defendant was assessed 85 points on the Risk Assessment Instrumentprepared by the Board of Examiners of Sex Offenders, designating him a presumptivelevel two sex offender. The defendant contested the assessment of 10 points for riskfactor 12. Even without those points, the defendant was a presumptive level two sexoffender. In any event, the assessment of those 10 points was proper since there was clearand convincing evidence in the record that the defendant did not accept responsibility forhis actions (see e.g. People vMedina, 118 AD3d 764 [2014]; People v Smith, 103 AD3d 616, 617 [2013]; People v Carroll, 102 AD3d848, 849 [2013]).
At the SORA hearing, the defendant sought a downward departure based upon themitigating circumstance set forth in the SORA Guidelines that the victim's lack ofconsent was due [*2]only to the victim's inability toconsent by virtue of age, and the defendant contended that the assessment of 25 pointsunder risk factor 2 (sexual intercourse) resulted in an overassessment of his risk ofreoffense (see Sex Offender Registration Act: Risk Assessment Guidelines andCommentary at 9 [2006]). Contrary to the defendant's contentions, the evidence that hesubmitted of the supposedly "consensual" nature of his sexual intercourse with thevictim, and the fact that the victim was only a few months shy of her 17th birthday at thetime, failed to establish by a preponderance of the evidence that the assessment of pointsunder risk factor 2 resulted in an overassessment of his risk (see People v Wyatt,89 AD3d at 129-130).
Accordingly, the County Court properly denied the defendant's application for adownward departure from his presumptive risk level. Mastro, J.P., Austin, Maltese andBarros, JJ., concur.