People v. Morales

159 A.D.3d 841

69 N.Y.S.3d 835 (Mem)

PEOPLE of State of New York, respondent,

v.Nazario MORALES, appellant.

2013–08524

Supreme Court, Appellate Division, Second Department, New York.

Submitted November 16, 2017

March 14, 2018

Paul Skip Laisure, New York, N.Y. (Meredith S. Holt of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Kenneth Blake of counsel), for respondent.

REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, BETSY BARROS, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Sullivan, J.), dated August 22, 2013, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is affirmed, without costs or disbursements.

The Supreme Court properly denied 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 (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 Guidelines' " (People v. Warren , 152 A.D.3d 551, 551, 54 N.Y.S.3d 871, quoting People v. Lathan , 129 A.D.3d 686, 687, 8 N.Y.S.3d 921 ; see People v. Gillotti , 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Wyatt , 89 A.D.3d 112, 128, 931 N.Y.S.2d 85 ; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] ). Here, the defendant failed to identify a proper mitigating factor at the SORA hearing (see People v. Warren , 152 A.D.3d at 551, 54 N.Y.S.3d 871; People v. Rodriguez , 145 A.D.3d 489, 490, 44 N.Y.S.3d 16 ; People v. Roldan , 140 A.D.3d 411, 412, 30 N.Y.S.3d 871 ).

Contrary to the defendant's contentions, his scores on risk assessments known as the Static–99 and Static–99R are not by themselves sufficient for a downward departure because, unlike the SORA Risk Assessment Instrument, the Static–99 and Static–99R assessments do not take into account the nature of the sexual contact with the victim or the potential harm that could be caused in the event of reoffense (see People v. Rodriguez , 145 A.D.3d at 490, 44 N.Y.S.3d 16 ; People v. Roldan , 140 A.D.3d at 412, 30 N.Y.S.3d 871 ). The defendant's contentions that he is entitled to a downward departure based upon mitigating circumstances, including, inter alia, his age upon release and his successful rehabilitation while...