People v. White

Appeal by the defendant from an order of the Supreme Court, Queens County (Koenderman, J.), dated November 19, 2012, 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. A court determining a defendant’s risk level under the Sex *882 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 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 Lathan, 129 AD3d 686, 686-687 [2015]; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). Here, the defendant failed to prove the existence of such a mitigating factor (see People v Jordan, 142 AD3d 596, 596 [2016]). Accordingly, the Supreme Court correctly denied his request for a downward departure from his presumptive risk level (see id.). Balkin, J.P., Hall, Sgroi and Barros, JJ., concur.