People v. Kohout

Appeal by the defendant from an order of the Supreme Court, Queens County (Margulis, J.), dated January 23, 2013, 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. This appeal arises from the defendant’s risk level designation under New York’s Sex Offender Registration Act (see Correction Law § 168 et seq.; hereinafter SORA) following his conviction in federal court of a crime relating to his possession of child pornography. After a hearing, the Supreme Court assessed the defendant 95 points on the Risk Assessment Instrument, within the range for a presumptive designation as a level two sex offender. The defendant contends that the Supreme Court should have downwardly departed from the *923 presumptive risk level and found him to be a level one sex offender. In seeking a downward departure from the presumptive risk level, a defendant first must identify an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the SORA Guidelines (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006]). The defendant must then prove the existence of that factor in the case by a preponderance of the evidence (see People v Gillotti, 23 NY3d 841, 861 [2014]; People v Marsh, 116 AD3d 680, 681-682 [2014]; People v Wyatt, 89 AD3d 112, 128 [2011]). If the defendant satisfies the burden of identifying and proving the existence of an appropriate mitigating factor, the court may then, as a matter of discretion, downwardly depart from the presumptive risk level. In determining whether to exercise that discretion in favor of a downward departure, the court must examine all the relevant circumstances in determining whether a designation at the presumptive risk level would result in an overassessment of the risk and danger of reoffense (see People v Gillotti, 23 NY3d at 861; People v Marsh, 116 AD3d at 682; People v Wyatt, 89 AD3d at 128). Here, we conclude that the Supreme Court providently exercised its discretion in designating the defendant a level two sex offender under the SORA Guidelines and in declining to downwardly depart from the presumptive risk level (see People v Rossano, 140 AD3d 1042, 1043 [2016]). Balkin, J.R, Austin, Sgroi and LaSalle, JJ., concur.