People v. Robinson

Appeal by the defendant from an order of the Supreme Court, Kings County (D’Emic, J.), dated March 25, 2016, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C. *806 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 Jordan, 142 AD3d 596, 596 [2016] [internal quotation marks omitted]; see People v Lathan, 129 AD3d 686, 687 [2015]; SORA: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter the Guidelines]). Here, nearly all of the mitigating circumstances identified by the defendant were adequately taken into account by the Guidelines: his educational and vocational progress while incarcerated, his completion of the sex offender program, his expression of remorse and acceptance of responsibility, and his post-release environment (see People v Grabowski, 142 AD3d 697 [2016]; People v Torres, 124 AD3d 744, 745-746 [2015]; People v Erving, 124 AD3d 447 [2015]; People v Riverso, 96 AD3d 1533, 1534 [2012]; People v Roe, 47 AD3d 1156 [2008]). The remaining circumstances cited by the defendant do not warrant a downward departure. The Supreme Court providently exercised its discretion in declining to depart from the presumptive risk level based on those circumstances, and thus, properly designated him a level three sex offender (see People v Gillotti, 23 NY3d 841, 861 [2014]; People v Grabowski, 142 AD3d at 698; People v Torres, 124 AD3d at 745-746). Balkin, J.P., Dickerson, Hinds-Radix and Brathwaite Nelson, JJ., concur.