| People v Correa (Marcos) |
| 2020 NY Slip Op 50840(U) [68 Misc 3d 126(A)] |
| Decided on July 10, 2020 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
New York City Legal Aid Society (Adrienne Gantt of counsel), for appellant. Queens County District Attorney (William H. Branigan of counsel), for respondent.
Appeal from an order of the Criminal Court of the City of New York, Queens County (Elisa S. Koenderman, J.), entered April 8, 2013. The order, after a hearing, designated defendant a level two sex offender pursuant to Correction Law article 6-C.
ORDERED that the order is affirmed, without costs.
Defendant appeals from an order designating him a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), contending that the Criminal Court should have granted his application for a downward departure from his presumptive risk level.
A defendant seeking a downward departure from a presumptive risk level must identify mitigating circumstances that are of a kind, or to a degree, not adequately taken into account by the SORA guidelines (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [SORA Guidelines]), and must prove the existence of those circumstances by a preponderance of the evidence (see People v Gillotti, 23 NY3d 841, 861-864 [2014]). "The Board [of Examiners of Sex Offenders] or a court may choose to depart downward in an appropriate case and in those instances where (i) the victim's lack of consent is due only to inability to consent by virtue of age and (ii) scoring 25 points in this category results in an over-assessment of the offender's risk to public safety" (SORA Guidelines at 9; see People v Anderson, 137 AD3d 988, 988 [2016]). A downward departure is not warranted here given the [*2]totality of the circumstances surrounding the incident, including, but not limited to, the age disparity between the then 28-year-old defendant and the then 14-year-old victim (see People v Garner, 163 AD3d 1009 [2018]; People v Quirindongo, 153 AD3d 863 [2017]; People v Fryer, 101 AD3d 835, 836 [2012]; People v Wyatt, 89 AD3d 112, 130 [2011]).
Additionally, the mitigating circumstances identified by defendant, that there was only one victim, that his prior criminal history did not involve violent behavior and that his time in jail was satisfactory, were adequately taken into account by the SORA Guidelines and, thus, a departure from the presumptive risk level is not warranted (see People v Garner, 163 AD3d at 1010).
Accordingly, the order designating defendant a level two sex offender is affirmed.
ALIOTTA, P.J., WESTON and ELLIOT, JJ., concur.