| People v Shelton |
| 2015 NY Slip Op 02464 [126 AD3d 959] |
| March 25, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Byron Shelton, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (A. Alexander Donn of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Ayelet Sela of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County(Buchter, J.), dated September 15, 2014, 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.
At a hearing pursuant to the Sex Offender Registration Act (Correction Law§ 168 et seq. [hereinafter SORA]), the defendant was assessed 80points under the Risk Assessment Instrument. That score was near the bottom of therange for a presumptive level two designation. The defendant contends, however, that theSupreme Court should have downwardly departed from the presumptive risk level todesignate him a level one sex offender. Although the defendant makes several argumentsin support of this contention, the most significant is his citation of studies showing that asex offender's risk of recidivism drops significantly with increased age, and he was 60years old at the time of the SORA hearing.
In seeking a departure from the presumptive risk level, a defendant must first identifya mitigating circumstance or circumstances "of a kind or to a degree not adequately takeninto account by the guidelines" (People v Gillotti, 23 NY3d 841, 861 [2014], citing SexOffender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; see People v Torres, 124 AD3d744 [2015]). The defendant then has the burden of proving by a preponderance ofthe evidence the existence of those circumstances in his or her case (see People vGillotti, 23 NY3d at 861, 864; People v Torres, 124 AD3d at 745). If thedefendant makes that two-fold showing, the court must determine whether thepresumptive risk level overassesses the danger presented by the defendant and the risk ofreoffense and, thus, whether a downward departure is warranted (see People vGillotti, 23 NY3d at 861).
Under the circumstances of this case, a downward departure on the basis of thedefendant's age was not warranted. The Supreme Court did not improvidently exercise itsdiscretion in concluding that the presumptive risk level did not overassess the dangerpresented by the defendant and the risk of reoffense (see People v Torres, 124AD3d at 745-746; People vLucius, 122 AD3d 819 [2014]; People v McFarland, 120 AD3d 1121, 1122 [2014]; People v Harris, 93 AD3d704, 706 [2012]; People vBeyah, 76 AD3d 917, 917 [2010]). Moreover, none of the other factors putforward by the defendant, either singly, in combination with each other, or incombination with the defendant's age, [*2]showed thatthe presumptive risk level overassessed the risk and danger of reoffense (see People vTorres, 124 AD3d at 746). The defendant's remaining contentions are without merit.Accordingly, the Supreme Court did not improvidently exercise its discretion indeclining to downwardly depart from the presumptive risk level. Balkin, J.P., Hall, Millerand Duffy, JJ., concur.