People v Lathan

People v Lathan 2015 NY Slip Op 04621 Decided on June 3, 2015 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 3, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
RUTH C. BALKIN
SANDRA L. SGROI
ROBERT J. MILLER, JJ.
2014-08188

[*1]People of State of New York, respondent,

v

Nathaniel Lathan, appellant.

Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III, of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated August 7, 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.

In the determination of a defendant's risk level pursuant to the Sex Offender Registration Act (see Correction Law art 6-C; hereinafter SORA), "[a] downward departure from a sex offender's presumptive risk level generally is only warranted where there exists a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines" (People v Watson, 95 AD3d 978, 979; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). A defendant seeking a downward departure 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 Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence" (People v Wyatt, 89 AD3d 112, 128; see People v Gillotti, 23 NY3d 841, 861).

Here, the defendant failed to establish the existence of any mitigating factors warranting a downward departure (see People v Ciudadreal, 125 AD3d 950, 950; People v Goodwin, 49 AD3d 619, 620-621; see also People v Beers, 124 AD3d 741, 741; People v Valdez, 123 AD3d 785, 786). Accordingly, contrary to the defendant's contention, the County Court correctly denied his application for a downward departure from his presumptive risk level (see People v Valdez, 123 AD3d at 786).

MASTRO, J.P., BALKIN, SGROI and MILLER, JJ., concur.

ENTER: Aprilanne Agostino Clerk of the Court