People v Brown, 2022 NY Slip Op 03408 [205 AD3d 1056]
May 25, 2022
Appellate Division, Second Department
[*1]
The People of the State of New York, Respondent,
v
Alonzo Brown, Appellant.
Patricia Pazner, New York, NY (Samuel Barr of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and William H. Branigan of counsel; Victoria Randall on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County (Ushir Pandit-Durant, J.), dated May 13, 2021, 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.
In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6-C [hereinafter SORA]), following a SORA hearing, the Supreme Court denied the defendant’s request for a downward departure from his presumptive risk level, and designated him a level two sex offender. The defendant appeals.
A defendant seeking a downward departure from the presumptive risk level has the initial 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 the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence” ( People v Wyatt , 89 AD3d 112 , 128 [2011]; see People v Gillotti , 23 NY3d 841 , 861 [2014]; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]). If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the defendant’s dangerousness and risk of sexual recidivism ( see People v Gillotti , 23 NY3d at 861; People v Champagne , 140 AD3d 719 , 720 [2016]).
Here, the defendant failed to demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into account by the Guidelines that tended to establish a lower likelihood of reoffense or danger to the community ( see People v Gillotti , 23 NY3d at 861; People v Adams , 174 AD3d 828 [2019]; People v Alvarez , 153 AD3d 645 , 646 [2017]; People v Wyatt , 89 AD3d at 121, 128; cf. People v Tineo-Morales , 101 AD3d 839 [2012]).
Accordingly, the Supreme Court properly denied the defendant’s request for a downward departure and designated him a level two sex offender. Barros, J.P., Chambers, Zayas and Dowling, JJ., concur..