People v. Wilson

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 [Sex Offender Registration Act: Risk Assessment Guidelines and Commentary (2006) (hereinafter Guidelines)]” (People v Lathan, 129 AD3d 686, 687 [2015] [internal quotation marks omitted]; see People v Warren, 152 AD3d 551, 551 [2017]; 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 [2016]; People v Roldan, 140 AD3d 411, 412 [2016]). 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).