People v. Rocano-Quintuna

• Decision Date: 26 April 2017
• Citation: 53 N.Y.S.3d 170,149 A.D.3d 1114
• Parties: PEOPLE of State of New York, respondent, v. Luis ROCANO–QUINTUNA, appellant.
• Court: New York Supreme Court — Appellate Division

149 A.D.3d 1114
53 N.Y.S.3d 170

PEOPLE of State of New York, respondent,
v.
Luis ROCANO–QUINTUNA, appellant.

Supreme Court, Appellate Division, Second Department, New York.

April 26, 2017.

53 N.Y.S.3d 171

Lynn W.L. Fahey, New York, NY (Jenin Younes of counsel), for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel; Gregory Musso on the brief), for respondent.

RANDALL T. ENG, P.J., L. PRISCILLA HALL, SHERI S. ROMAN, and SYLVIA O. HINDS–RADIX, JJ.

Appeal by the defendant from an order of the Supreme Court, Kings County (Brennan, J.), dated May 18, 2016, 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.

A defendant seeking a downward departure from his 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 not otherwise adequately taken into account by the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA) Guidelines, and (2) establishing the facts in support of its existence by a preponderance of the evidence (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006; hereinafter Guidelines]; People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Velasquez, 145 A.D.3d 924, 42 N.Y.S.3d 845 ; People v. Kohout, 145 A.D.3d 922, 44 N.Y.S.3d 470 ; People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85 ). Only if this twofold showing is made does the court have the "discretion to grant or deny the departure application based upon an examination of all circumstances relevant to the offender's risk of reoffense and danger to the community" (People v. Wyatt, 89 A.D.3d at 128, 931 N.Y.S.2d 85 ; see People v. Kohout, 145 A.D.3d at 922, 44 N.Y.S.3d 470 ; People v. Uphael, 140 A.D.3d 1143, 1144, 35...