Opinion
2015-08-05
PEOPLE of State of New York, respondent, v. Cesar GAME, appellant.
Lynn W.L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Danielle S. Fenn of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Danielle S. Fenn of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County (Koenderman, J.), dated February 24, 2014, 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's contention that the Supreme Court improperly assessed him points under risk factor 11 is unpreserved for appellate review, and we decline to reach it in the interest of justice ( see CPL 470.05[2]; People v. DeDona, 102 A.D.3d 58, 954 N.Y.S.2d 541; People v. Velardo, 80 A.D.3d 682, 914 N.Y.S.2d 671).
Contrary to the defendant's further contention, he was not entitled to a downward departure from his presumptive risk level. A downward departure from a sex offender's presumptive risk level generally is warranted only where there exists a mitigating factor of a kind or to a degree not otherwise adequately taken into account by the Sex Offender Registration Act (hereinafter SORA) Guidelines ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; People v. Fryer, 101 A.D.3d 835, 836, 955 N.Y.S.2d 407; People v. Bowens, 55 A.D.3d 809, 810, 866 N.Y.S.2d 291; People v. Taylor, 47 A.D.3d 907, 908, 850 N.Y.S.2d 195; People v. Burgos, 39 A.D.3d 520, 520, 834 N.Y.S.2d 224; People v. Hines, 24 A.D.3d 524, 525, 807 N.Y.S.2d 608). “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 SORA Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence” ( People v. Fryer, 101 A.D.3d at 836, 955 N.Y.S.2d 407; see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1; People v. Watson, 95 A.D.3d 978, 979, 944 N.Y.S.2d 584).
Here, the defendant failed to establish facts in support of his claim that his response to treatment had been so exceptional as to justify a downward departure ( see People v. Morgan, 124 A.D.3d 742, 998 N.Y.S.2d 660; People v. Coleman, 122 A.D.3d 599, 995 N.Y.S.2d 223; People v. Tisman, 116 A.D.3d 1018, 1019, 984 N.Y.S.2d 604). In addition, the other factors identified by the defendant were either adequately taken into account by the SORA Guidelines ( see People v. Reede, 113 A.D.3d 663, 978 N.Y.S.2d 683), or did not warrant departure from the presumptive risk level ( see People v. Montano, 124 A.D.3d 857, 998 N.Y.S.2d 907; People v. Coleman, 122 A.D.3d 599, 995 N.Y.S.2d 223). Accordingly, the Supreme Court properly classified the defendant as a level two sex offender ( see People v. Gelin, 128 A.D.3d 657, 7 N.Y.S.3d 609; People v. Fryer, 101 A.D.3d at 836, 955 N.Y.S.2d 407).