People v. MacCoy

Appeal by the defendant from an order of the Supreme Court, Kings County (Brennan, J.), dated April 12, 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. A defendant seeking a downward departure from the presumptive risk level established by the Risk Assessment Instrument (hereinafter RAI) prepared by the Board of Examiners of Sex Offenders has the initial burden of “(1) identifying, as a matter of law, 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 [Sex Offender Registration Act] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence” (People v Wyatt, 89 AD3d 112, 128 [2011]). The defendant’s assertions of mitigating factors such as his minimal criminal history, lack of history of drug or alcohol abuse, and his supportive family network were all adequately considered in the RAI, and the defendant has already received the benefit of those factors (see People v Jordan, 136 AD3d 697 [2016]). Further, the hearing court providently exercised its discretion in assessing the defendant 20 points for his refusal to accept responsibility for his actions in light of his recent motion to vacate his conviction and claims of innocence. Accordingly, the Supreme Court properly denied the defendant’s request for a downward departure from his presumptive designation as a level three sex offender. Dillon, J.R, Sgroi, Hinds-Radix and Iannacci, JJ., concur.