*1 APPEAL by the defendant from an order of the Supreme Court (Matthew J. D’Emic, J.), dated February 10, 2016, and entered in Kings County, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.*2
RANDALL ENG, J.OPINION & ORDERThe Sex Offender Registration Act (see Correction Law art 6-C; hereinafter SORA), New York’s version of “Megan’s Law,” was enacted in response to the 1994 rape and murder of a seven-year-old child by a convicted sex offender who lived across the street from her home. When the Legislature passed SORA into law, it required the establishment of a board of examiners of sex offenders (hereinafter the Board), composed of “experts in the field of the behavior and treatment of sex offenders” (Correction Law §168-l[1]), and charged the Board with the responsibility of developing “guidelines and procedures to assess the risk of a repeat offense by [a] sex offender and the threat posed to the public safety” (Correction Law §168-l[5]). Acting on this statutory mandate, the Board created a risk assessment instrument (hereinafter RAI) to be used as a tool in determining a sex offender’s risk of reoffense and threat to public safety. At issue on this appeal is whether the fact that an offender scores as being at a lower risk to reoffend on a different type of assessment instrument is a mitigating factor that may support a downward departure from the offender’s presumptive risk level as determined by using the RAI. We conclude that a lower risk score on a different assessment instrument is not a circumstance which, standing alone, may be considered a mitigating factor, and that the Supreme Court thus properly denied the defendant’s request for a downward departure on this ground.The defendant’s conviction of sexual abuse in the first degree stems from acts committed on February 16, 2011, when he was 31 years old. On that date, the defendant went to the apartment of his then 22-year-old former girlfriend. He banged on the front door demanding that the victim let him in, and threatened to break in through a window if she refused to do so. The victim let the defendant into her apartment, and once inside, the defendant asked to see the victim’s phone. When the victim refused to show the defendant her phone, he threatened to beat her. The victim attempted to leave the apartment through the front door, but the defendant stopped her. She then tried to leave through a window. The defendant grabbed her wrist, pushed her onto a sofa, and slapped her face twice, telling her that if she did not give him her phone, she would be in the hospital. After the victim gave the defendant her phone, the defendant threw her onto her bed, removed her pants, and bit her neck and buttocks. The defendant then raped the victim as she struggled and told him to stop.For these acts, the defendant was charged with multiple crimes, including rape in the first degree
