People v. Drayton
| Decision Date | 31 August 2022 |
| Docket Number | 2020–00237 |
| Citation | 208 A.D.3d 903,173 N.Y.S.3d 346 |
| Parties | PEOPLE of State of New York, respondent, v. Chancellor DRAYTON, appellant. |
| Court | New York Supreme Court — Appellate Division |
Patricia Pazner, New York, NY (William Kastin of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Anthea H. Bruffee of counsel; Robert Ho on the brief), for respondent.
COLLEEN D. DUFFY, J.P., BETSY BARROS, REINALDO E. RIVERA, ROBERT J. MILLER, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (Guy J. Mangano, Jr., J.), dated December 4, 2019, 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 was convicted of course of sexual conduct against a child in the first degree and rape in the first degree for acts he committed against a nine-year-old girl who, as a result of the defendant's actions, became pregnant and underwent a second-trimester abortion
. Prior to the defendant's release from prison, a hearing was conducted to determine his risk level pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA). Based on the risk assessment instrument, the defendant was a presumptive level two sex offender. The Supreme Court denied the People's application for an upward departure from the presumptive risk level, as well as the defendant's application for a downward departure. The defendant appeals.
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" ( People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85 ; see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]). If the defendant makes that twofold showing, the court "must exercise its discretion by weighing the aggravating and mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over- or under-assessment of the defendant's dangerousness and risk of sexual...
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