People v Vizcarra

People v Vizcarra 2016 NY Slip Op 02796 Decided on April 13, 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 April 13, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
RUTH C. BALKIN
THOMAS A. DICKERSON
SYLVIA O. HINDS-RADIX, JJ.
2015-08635

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

v

Abraham A. Vizcarra, appellant.

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

Thomas J. Spota, District Attorney, Riverhead, NY (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 12, 2015, 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.

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; see People v Gillotti, 23 NY3d 841, 861). If the defendant "surmounts the first two steps, the law permits a departure, but the court still has discretion to refuse to depart or to grant a departure" (People v Gillotti, 23 NY3d at 861; see People v Wyatt, 89 AD3d at 128).

Here, the County Court properly denied the defendant's request for a downward departure and, thus, properly designated him a level two sex offender (see People v Sadler, 124 AD3d 613; People v Houston, 122 AD3d 915).

RIVERA, J.P., BALKIN, DICKERSON and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court