| People v Ibarra |
| 2016 NY Slip Op 02065 [137 AD3d 1097] |
| March 23, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Mario Ibarra, Appellant. |
Seymour W. James, Jr., New York, NY (Joshua Norkin of counsel), forappellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart andPaul M. Tarr of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Richmond County(Rienzi, J.), dated July 11, 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.
Contrary to the People's contention, this appeal from an order designating thedefendant a level two sex offender pursuant to the Sex Offender Registration Act(Correction Law art 6-C [hereinafter SORA]) should not be dismissed on the ground thatthe defendant has been deported (see People v Shim, — AD3d &mdash,2016 NY Slip Op 01818 [2d Dept 2016]; People v Edwards, 117 AD3d 418 [2014]; People v Gudino-Sanchez, 116AD3d 565 [2014]; People vScott, 113 AD3d 491 [2014]).
A defendant seeking a downward departure from the presumptive risk level 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 Wyatt, 89 AD3d 112, 128 [2011]; see People v Gillotti, 23 NY3d841 [2014]). Here, the mitigating factors identified by the defendant were eitheradequately taken into account by the SORA Guidelines or did not warrant a downwarddeparture from the presumptive risk level (see People v Gelin, 128 AD3d 657 [2015]).
Accordingly, the Supreme Court properly denied the defendant's request for adownward departure from his presumptive designation as a level two sex offender.Leventhal, J.P., Dickerson, Roman and Hinds-Radix, JJ., concur.