People v Ruffin, 2018 NY Slip Op 06126 [164 AD3d 1382]
September 19, 2018
Appellate Division, Second Department
[*1]
The People of the State of New York, Respondent,
v
Darin Ruffin, Appellant.
The Legal Aid Society, New York, NY (Adrienne M. Gantt of counsel; Adrianne Isaacson on the brief), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jean M. Joyce of counsel; Marielle Burnett on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Raymond Guzman, J.), dated June 5, 2014, 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 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] 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]). 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 over-assessment 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, since the factors identified by the defendant were either adequately taken into account by the Guidelines, or were not proven by a preponderance of the evidence, the Supreme Court did not have the discretion to depart from his presumptive risk level ( see People v Curry , 158 AD3d 52 , 60-62 [2017]; People v Rocano-Quintuna , 149 AD3d 1114 , 1115 [2017]). Accordingly, we agree with the Supreme Court’s determination denying the defendant’s application for a downward departure from his presumptive risk level three. Leventhal, J.P., Barros, Brathwaite Nelson and Iannacci, JJ., concur..