People v Sanchez-Jimenez, 2022 NY Slip Op 00323 [201 AD3d 826]
January 19, 2022
Appellate Division, Second Department
[*1]
The People of State of New York, Respondent,
v
Alexander Sanchez-Jimenez, Appellant.
Janet E. Sabel, New York, NY (Svetlana M. Kornfeind of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Roni C. Piplani of counsel; Jacob Aboodi on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County (Suzanne Melendez, J.), dated December 20, 2018, 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]), the Supreme Court assessed the defendant 80 points on the risk assessment instrument, within the range for a presumptive designation as a level two sex offender. The court denied the defendant’s request for a downward departure from his presumptive risk level and designated him a level two sex offender. On appeal, the defendant challenges the denial of his request for a downward departure from his presumptive risk level.
A defendant seeking a downward departure from his or her presumptive risk level has the initial burden of “(1) identifying, as a matter of law, an appropriate mitigating favor, 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]).
In this case, the defendant either failed to establish by a preponderance of the evidence the grounds asserted for a downward departure from his presumptive risk level ( see People v Mitchell , 196 AD3d 516 , 518 [2021]; People v Nicholson , 195 AD3d 758 [2021]; People v Bigelow , 175 AD3d 1443 [2019]; People v Santiago , 137 AD3d 762 , 765 [2016]), or cited factors already taken into account by the Guidelines ( see People v Peoples 189 AD3d 1282 , 1283 [2020]; People v Rivas , 185 AD3d 740 , 741 [2020]; People v Santiago , 137 AD3d at 764). Accordingly, the Supreme Court properly denied the [*2] defendant’s request for a downward departure from his presumptive risk level, and designated him a level two sex offender. Connolly, J.P., Hinds-Radix, Roman and Dowling, JJ., concur..