People v. Lathan
| Decision Date | 03 June 2015 |
| Parties | PEOPLE of State of New York, respondent, v. Nathaniel LATHAN, appellant. |
| Court | New York Supreme Court — Appellate Division |
129 A.D.3d 686
8 N.Y.S.3d 921 (Mem)
2015 N.Y. Slip Op. 04621
PEOPLE of State of New York, respondent
v.
Nathaniel LATHAN, appellant.
Supreme Court, Appellate Division, Second Department, New York.
June 3, 2015.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III, of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.
Opinion
Appeal by the defendant from an order of the County Court, Suffolk County
(Kahn, J.), dated August 7, 2014, 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 the determination of a defendant's risk level pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA), “[a] downward departure from a sex offender's
presumptive risk level generally is only warranted where there exists a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines” (People v. Watson, 95 A.D.3d 978, 979, 944 N.Y.S.2d 584 ; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] ). A defendant seeking a downward departure 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 ).
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