People v. Jordan , 36 N.Y.S.3d 608 ( 2016 )

People v Jordan (2016 NY Slip Op 05800)

People v Jordan

2016 NY Slip Op 05800

Decided on August 17, 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 August 17, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
SHERI S. ROMAN
JEFFREY A. COHEN
FRANCESCA E. CONNOLLY, JJ.

2015-06243

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

v

Jackie Jordan, appellant.

Seymour W. James, Jr., New York, NY (Angie Louie of counsel), for appellant.

Michael E. McMahon, District Attorney, Staten Island, NY (Anne Grady and Alex Fumelli of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated September 23, 2014, 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.

A court determining a defendant's risk level under the Sex Offender Registration Act (see Correction Law art 6-C; hereinafter SORA) is not permitted to downwardly depart from the presumptive risk level unless the defendant first identifies and proves the presence 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 Lathan, 129 AD3d 686, 687 [internal quotation mark omitted]; see SORA: Risk Assessment Guidelines and Commentary at 4 [2006]). Here, the defendant failed to prove the existence of such a mitigating factor (see People v Lathan, 129 AD3d at 687; People v Ciudadreal, 125 AD3d 950, 950). Accordingly, the Supreme Court correctly denied his request for a downward departure from his presumptive risk level (see People v Lathan, 129 AD3d at 687).

BALKIN, J.P., ROMAN, COHEN and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court