People v Henson, 2023 NY Slip Op 01017 [213 AD3d 958]
February 22, 2023
Appellate Division, Second Department
[*1]
The People of the State of New York, Respondent,
v
Harold Henson, Appellant.
Twyla Carter, New York, NY (Robin Richardson of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Ellen C. Abbot of counsel; Rachel A. Cregier on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County (Suzanne Melendez, J.), dated November 8, 2019, 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.
Contrary to the defendant’s contention, the Supreme Court properly denied his application for a downward departure from his presumptive risk level. “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 [Sex Offender Registration Act (hereinafter SORA)] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence’ ” ( People v Medina , 209 AD3d 775 , 776 [2022] [internal quotation marks omitted], quoting People v Jones , 196 AD3d 515 , 515 [2021]; see People v Wyatt , 89 AD3d 112 , 128 [2011]; People v Gillotti , 23 NY3d 841 , 861 [2014]; People v Emery , 204 AD3d 944 , 944-945 [2022]; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). “ ’If the defendant makes that twofold showing, the SORA court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an over-assessment of the defendant’s SORA dangerousness and risk of sexual recidivism’ ” ( People v Medina , 209 AD3d at 776, quoting People v Sofo , 168 AD3d 891 , 891-892 [2019]; see People v Gillotti , 23 NY3d at 861; People v Jones , 196 AD3d at 516; People v Brunjes , 174 AD3d 747 , 747-748 [2019]; People v Dixon , 167 AD3d 1052 , 1053 [2018]).
Here, the defendant failed to demonstrate that the assessment of points under risk factor 9 for a prior violent felony conviction resulted in an overassessment of his risk level. “[T]he temporal remoteness of a prior felony conviction does not qualify as a mitigating factor for a downward departure” ( People v Sofo , 168 AD3d at 892; see People v Jewell , 119 AD3d 1446 , 1448-1449 [2014]; see also People v Medina , 209 AD3d at 776; People v Emery , 204 AD3d at 945).
The defendant’s remaining contentions as to why he should have been granted a downward departure are unpreserved for appellate review and, in any event, without merit. Duffy, J.P., Miller, Dowling and Warhit, JJ., concur..