People v. Robinson , 155 A.D.3d 980 ( 2017 )

People v Robinson (2017 NY Slip Op 08292)

People v Robinson

2017 NY Slip Op 08292

Decided on November 22, 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 November 22, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
SANDRA L. SGROI
SYLVIA O. HINDS-RADIX
ANGELA G. IANNACCI, JJ.

2016-02986

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

v

Ronald Robinson, appellant.

Seymour W. James, Jr., New York, NY (Michael C. Taglieri of counsel), for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Anthea H. Bruffee of counsel; Ruby D. Andrade on the brief), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Brennan, J.), dated March 2, 2016, 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.

At a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C), the defendant was assessed 140 points under the risk assessment instrument, well within the range for a presumptive level three designation. He was also assessed an override based upon a prior felony conviction for a sex crime.

The defendant did not appear at the hearing, did not present evidence as to the current state of his health, and did not introduce evidence of the studies of the recidivism of older sex offenders which he cited in his application for a downward departure from his presumptive risk level. Therefore, the defendant failed to meet his burden of establishing by a preponderance of the evidence that he is entitled to a downward departure from his presumptive risk level based upon his age (see People v Rocano-Quintuna, 149 AD3d 1114; People v Benoit, 145 AD3d 687, 688; People v Santiago, 137 AD3d 762, 765).

Accordingly, the Supreme Court properly denied the defendant's application for a downward departure.

DILLON, J.P., SGROI, HINDS-RADIX and IANNACCI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court