

People v Wilson (2017 NY Slip Op 08704)





People v Wilson


2017 NY Slip Op 08704


Decided on December 13, 2017


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 13, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

RUTH C. BALKIN, J.P.
JOHN M. LEVENTHAL
LEONARD B. AUSTIN
ANGELA G. IANNACCI, JJ.


2015-08715

[*1]People of State of New York, respondent,
vSalamea Wilson, appellant.


Paul Skip Laisure, New York, NY (Meredith S. Holt of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Julian Joiris of counsel), for respondent.

DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (Murphy, J.), dated August 18, 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.
The Supreme Court properly rejected the defendant's request for a downward departure from the presumptive risk level. A court determining a defendant's risk level under the Sex Offender Registration Act (see Correction Law art 6-C; hereinafter SORA) may not downwardly depart from the presumptive risk level unless the defendant first identifies, and proves by a preponderance of the evidence the facts in support of, "a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the [SORA: Risk Assessment Guidelines and Commentary (2006)(hereinafter Guidelines)]" (People v Lathan, 129 AD3d 686, 687 [internal quotation marks omitted]; see People v Warren, 152 AD3d 551, 551; Guidelines at 4). Here, the defendant failed to identify a proper mitigating factor (see People v Warren, 152 AD3d at 551; People v Rodriguez, 145 AD3d 489, 490; People v Roldan, 140 AD3d 411, 412). Accordingly, there was no basis for a downward departure, and the court properly designated the defendant a level two sex offender (see People v Warren, 152 AD3d at 551).
BALKIN, J.P., LEVENTHAL, AUSTIN and IANNACCI, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


