Opinion
2014-02-13
PEOPLE of State of New York, respondent, v. Lemar JACKSON, appellant.
Steven Banks, New York, N.Y. (Arthur H. Hopkirk of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel), for respondent.
Steven Banks, New York, N.Y. (Arthur H. Hopkirk of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel), for respondent.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL and LEONARD B. AUSTIN, JJ.
Appeal by the defendant from an order of the Supreme Court, Kings County (Balter, J.), dated August 21, 2012, which, after a hearing, designated him a level three sexually violent offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
The defendant contends that he was entitled to a downward departure from the presumptive risk level because of his alleged “exceptional response” to treatment while incarcerated. 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 not otherwise 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). If the defendant fails to satisfy that twofold burden, the court lacks discretion to downwardly depart from the presumptive risk level ( see People v. Washington, 105 A.D.3d 724, 725, 961 N.Y.S.2d 790;People v. Wyatt, 89 A.D.3d at 128, 931 N.Y.S.2d 85).
Here, the defendant identified an appropriate mitigating factor that could provide a basis for a discretionary downward departure, as the Sex Offender Registration Act Risk Assessment Guidelines and Commentary recognizes that “[a]n offender's response to treatment, if exceptional, can be the basis for a downward departure” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]; see People v. Washington, 84 A.D.3d 910, 911, 923 N.Y.S.2d 151). However, the defendant failed to establish, by a preponderance of the evidence, that his response to treatment was exceptional ( see People v. Roldan, 111 A.D.3d 909, 975 N.Y.S.2d 681;People v. Guzman, 110 A.D.3d 863, 973 N.Y.S.2d 310,lv. denied22 N.Y.3d 859, 2014 N.Y. Slip Op. 60770, 2014 WL 113763 [2014];People v. Perez, 104 A.D.3d 746, 960 N.Y.S.2d 503;People v. Watson, 95 A.D.3d 978, 979, 944 N.Y.S.2d 584). Accordingly, the Supreme Court properly denied the defendant's application for a downward departure.