The People of the State of New York, Respondent, v. Timothy Crosby, Appellant

The People of the State of New York, Respondent, v Timothy Crosby, Appellant. [66 NYS3d 903] [MAJORITY] Appeal by the defendant from an order of the Supreme Court, Kings County (Michael J. Brennan, J.), dated October 5, 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. In this proceeding pursuant to the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]), the Supreme Court assessed the defendant 120 points on the risk assessment instrument, within the range for a presumptive designation as a level three sex offender. Additionally, the court denied the defendant’s request for a downward departure from that presumptive risk level, and it designated him a level three sex offender. On appeal, the defendant challenges the court’s denial of his request for a downward departure. The Supreme Court properly rejected the defendant’s request for a downward departure. A court determining a defendant’s risk level under SORA may not downwardly depart from the presumptive risk level unless the defendant first identifies, and proves by a preponderance of the evidence the facts in support 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 Lathan, 129 AD3d 686, 686-687 [2015] [internal quotation marks omitted]; see People v Warren, 152 AD3d 551, 551 [2017]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). Here, the defendant failed to identify a valid mitigating factor (see People v Warren, 152 AD3d at 551). Accordingly, there was no basis for a downward departure, and the court properly designated the defendant a level three sex offender. Balkin, J.R, Hall, Hinds-Radix and Christopher, JJ., concur.