The People of State of New York, Respondent, v. Gerson Munguia, Appellant

The People of State of New York, Respondent, v Gerson Munguia, Appellant. [56 NYS3d 467] [MAJORITY] Appeal by the defendant from an order of the Supreme Court, Kings County (Foley, J.), dated September 16, 2015, 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. The defendant appeals from his designation as a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq. [hereinafter SORA]), contending that the Supreme Court should have granted his application for a downward departure from his presumptive risk level designation. A defendant seeking a downward departure must identify mitigating circumstances that are of a kind, or to a degree, not adequately taken into account by the SORA guidelines, and must prove the existence of those circumstances by a preponderance of the evidence (see People v Gillotti, 23 NY3d 841, 861-864 [2014]; People v Kohout, 145 AD3d 922, 923 [2016]). If the defendant satisfies that burden, “the law permits a departure, but the court still has discretion to refuse to depart or to grant a departure” (People v Gillotti, 23 NY3d at 861). In exercising this discretion, the court must determine whether the totality of the circumstances warrants a departure to avoid an over-assessment of the defendant’s dangerousness and risk of sexual recidivism (see id.; People v Kohout, 145 AD3d at 923). Under the circumstances of this case, the Supreme Court providently exercised its discretion in denying the defendant’s application for a downward departure from his presumptive designation as a level two sex offender (see People v Rossano, 140 AD3d 1042, 1043 [2016]; People v Rotunno, 117 AD3d 1019 [2014]). Mastro, J.R, Rivera, Hall and Maltese, JJ., concur.