People v Ibarra

People v Ibarra 2016 NY Slip Op 02065 Decided on March 23, 2016 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 March 23, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
THOMAS A. DICKERSON
SHERI S. ROMAN
SYLVIA O. HINDS-RADIX, JJ.
2013-08723

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

v

Mario Ibarra, appellant.

Seymour W. James, Jr., New York, NY (Joshua Norkin of counsel), for appellant.

Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and Paul M. Tarr of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated July 11, 2013, 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.

Contrary to the People's contention, this appeal from an order designating the defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA) should not be dismissed on the ground that the defendant has been deported (see People v Shim, _____ AD3d _____, 2016 NY Slip Op _____ [2d Dept 2016]; People v Edwards, 117 AD3d 418; People v Gudino-Sanchez, 116 AD3d 565; People v Scott, 113 AD3d 491).

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 [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; see People v Gillotti, 23 NY3d 841). Here, the mitigating factors identified by the defendant were either adequately taken into account by the SORA Guidelines or did not warrant a downward departure from the presumptive risk level (see People v Gelin, 128 AD3d 657).

Accordingly, the Supreme Court properly denied the defendant's request for a downward departure from his presumptive designation as a level two sex offender.

LEVENTHAL, J.P., DICKERSON, ROMAN and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court