Summary
The Appellate Division, Second Department affirms a County Court order designating the defendant as a level two sex offender under New York's Sex Offender Registration Act. The court upheld the trial court's assessment of points under risk factor 14 for release without supervision and rejected the defendant's unpreserved and meritless arguments for a downward departure from his presumptive risk level. The decision clarifies the burden and standard for downward departures under the SORA Guidelines, concluding that the total points properly supported the designation.
Topics
Practice areas
Questions Presented
- Whether the County Court erred in assessing 15 points under risk factor 14 for release without supervision.
- Whether the defendant was entitled to a downward departure from the presumptive risk level.
Holdings
- The County Court properly assessed 15 points under risk factor 14; the assessment is affirmed.
- The defendant was not entitled to a downward departure because the mitigating factor was not preserved for appellate review and other factors were either accounted for or insufficient.
Key quotations
“A defendant seeking a downward departure from the presumptive risk level 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 Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence".”
Factual background
Jose Fuentes Santos was designated a level two sex offender after the County Court assessed him 75 points, including 15 points under risk factor 14 for release without supervision, and denied his request for a downward departure from the presumptive risk level.
Procedural history
The County Court assessed the defendant 75 points on the risk assessment instrument, denied a downward departure request, and designated him a level two sex offender. The defendant appealed challenging the assessment of points under risk factor 14 and the denial of a downward departure.