Seymour W. James, Jr., New York, N.Y. (Laura Lieberman Cohen of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Jeanette Lifschitz of counsel; Lorrie A. Zinno on the brief), for respondent.
Opinion
Appeal by the defendant from an order of the Supreme Court, Queens County (Knopf, J.), dated February 10, 2014, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
In seeking a departure from the presumptive risk level, a defendant must first identify a mitigating circumstance or circumstances “of a kind or to a degree not adequately taken into account by the [Sex Offender Registration Act] guidelines” (People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter the Guidelines] ). The defendant then has the burden of proving by a preponderance of the evidence the existence of those circumstances in his or her case (see People v. Gillotti, 23 N.Y.3d at 861, 864, 994 N.Y.S.2d 1, 18 N.E.3d 701; People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85). If the defendant makes that two-fold showing, the court must determine whether the presumptive risk level overassesses the danger presented by the defendant and the risk of reoffense and, thus, whether a downward departure is warranted (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).
Here, the mitigating circumstances identified by the defendant either were adequately taken into account by the Guidelines, or were not proven by a preponderance of the evidence (see People v. Santiago, 137 A.D.3d 762, 26 N.Y.S.3d 339). Accordingly, the Supreme Court properly denied the defendant's application for a downward departure.
RIVERA, J.P., MILLER, HINDS–RADIX and LaSALLE, JJ., concur.