People v Calle-Calle

People v Calle-Calle 2016 NY Slip Op 08380 Decided on December 14, 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 December 14, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
JOHN M. LEVENTHAL
JEFFREY A. COHEN
ROBERT J. MILLER, JJ.
2016-03582

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

v

Wilmer Calle-Calle, appellant.

Lynn W. L. Fahey, New York, NY (Bryan D. Kreykes of counsel), for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Joyce Adolfsen, and Daniel Berman of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Cyrulnik, J.), dated March 25, 2016, 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.

Under the Sex Offender Registration Act (Correction Law art 6-C), a defendant requesting a downward departure from that defendant's presumptive risk level "must identify, 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: Risk Assessment Guidelines and Commentary (2006)" (People v Carter, 138 AD3d 706, 707; see People v Gillotti, 23 NY3d 841, 861). "The defendant must then prove the existence of that factor in the case by a preponderance of the evidence" (People v Carter, 138 AD3d at 707; see People v Gillotti, 23 NY3d at 861). "If the defendant satisfies that burden, a downward departure becomes a matter of discretion for the court. In determining whether to downwardly depart, the court must examine all the relevant circumstances" (People v Carter, 138 AD3d at 707; see People v Gillotti, 23 NY3d at 861). Here, the Supreme Court properly denied the defendant's application for a downward departure from his presumptive risk level, and, thus, properly designated him a level two sex offender (see People v Vizcarra, 138 AD3d 815, 816; People v Sadler, 124 AD3d 613, 613-614).

DILLON, J.P., LEVENTHAL, COHEN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court