People v Martinez, 2018 NY Slip Op 02493 [160 AD3d 781]
April 11, 2018
Appellate Division, Second Department
[*1]
The People of the State of New York, Respondent,
v
David Martinez, Appellant.
Seymour W. James, Jr., New York, NY (Michael C. Taglieri of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Joyce Adolfsen of counsel; Walker Halstad on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Michael J. Brennan, J.), dated November 16, 2016, 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.
The Supreme Court did not err in denying the defendant’s request for a downward departure from his presumptive risk level to risk level one. 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 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]).
Here, the mitigating circumstances identified by the defendant either were adequately taken into account by the SORA Guidelines, or were not proven by a preponderance of the evidence ( see People v Velasquez , 145 AD3d 924 , 924-925 [2016]; People v Game , 131 AD3d 460 , 461 [2015]; People v Coleman , 122 AD3d 599 , 599-600 [2014]; People v Wyatt , 89 AD3d 112 , 131 [2011]).
Accordingly, the Supreme Court properly denied the defendant’s request for a downward departure from his presumptive risk level designation. Rivera, J.P., Roman, Duffy and Connolly, JJ., concur..