Seymour W. James, Jr., New York, NY (Angie Louie of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Anne Grady and Alex Fumelli of counsel), for respondent.
Opinion
Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated September 23, 2014, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
A court determining a defendant's risk level under the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA) is not permitted to downwardly depart from the presumptive risk level unless the defendant first identifies and proves the presence of “a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines” (People v. Lathan, 129 A.D.3d 686, 687, 8 N.Y.S.3d 921 [internal quotation mark omitted]; see SORA: Risk Assessment Guidelines and Commentary at 4 [2006] ). Here, the defendant failed to prove the existence of such a mitigating factor (see People v. Lathan, 129 A.D.3d at 687, 8 N.Y.S.3d 921 ; People v. Ciudadreal, 125 A.D.3d 950, 950, 1 N.Y.S.3d 858 ). Accordingly, the Supreme
Court correctly denied his request for a downward departure from his presumptive risk level (see People v. Lathan, 129 A.D.3d at 687, 8 N.Y.S.3d 921 ).
BALKIN, J.P., ROMAN, COHEN and CONNOLLY, JJ., concur.