Seymour W. James, Jr., New York, NY (Harold V. Ferguson, Jr., of counsel; Jennifer Yun on the brief), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Jeanette Lifschitz of counsel; Lorrie A. Zinno on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County (Koenderman, J.), dated November 19, 2012, 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.
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 by a preponderance of the evidence the facts in support 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, 686–687, 8 N.Y.S.3d 921 ; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] ). Here, the defendant failed to prove the existence of such a mitigating factor (see People v. Jordan, 142 A.D.3d 596, 596, 36 N.Y.S.3d 608 ). Accordingly, the Supreme Court correctly denied his request for a downward departure from his presumptive risk level (see id. ).
BALKIN, J.P., HALL, SGROI and BARROS, JJ., concur.