Opinion
2018–14941
07-01-2020
PEOPLE of State of New York, Respondent, v. Michael THOMAS, Appellant.
Laurette D. Mulry, Riverhead, NY (Amanda E. Schaefer of counsel), for appellant. Timothy D. Sini, District Attorney, Riverhead, NY (Kathleen Becker Langlan of counsel), for respondent.
Laurette D. Mulry, Riverhead, NY (Amanda E. Schaefer of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, NY (Kathleen Becker Langlan of counsel), for respondent.
REINALDO E. RIVERA, J.P., JOSEPH J. MALTESE, BETSY BARROS, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER Appeal by the defendant from an order of the County Court, Suffolk County (Barbara Kahn, J), dated November 27, 2018, 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.
On April 29, 1998, the defendant was convicted, after a jury trial, of rape in the first degree. In November 2018, the County Court conducted a risk level determination hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA). Due to the defendant's prior convictions for felony sex offenses, a mandatory override resulted in his presumptive designation as a level three sex offender (see People v. Varvaro, 171 A.D.3d 958, 959, 95 N.Y.S.3d 593 ). The defendant requested that the court downwardly depart from the presumptive risk level, but the court rejected the defendant's request and designated him a level three sex offender. The defendant appeals.
A defendant seeking a downward departure from the 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 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. 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 ; see also SORA: Risk Assessment Guidelines and Commentary at 4 [2006] ). If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the defendant's dangerousness and risk of sexual recidivism (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Champagne, 140 A.D.3d 719, 720, 31 N.Y.S.3d 218 ).
The defendant contends that the County Court should have granted his request for a downward departure based upon his exceptional response to sex offender treatment during his incarceration. This contention is unpreserved for appellate review, as the defendant failed to raise it as a ground for a downward departure at the SORA hearing (see People v. Boutin, 172 A.D.3d 1253, 1254, 99 N.Y.S.3d 417 ; People v. Howell, 167 A.D.3d 785, 786, 87 N.Y.S.3d 497 ; People v. Cosby, 154 A.D.3d 789, 790, 61 N.Y.S.3d 676 ). In any event, the defendant failed to show by a preponderance of the evidence that his response to treatment was exceptional (see People v. Burrowes, 177 A.D.3d 1005, 1007, 113 N.Y.S.3d 264 ; People v. McClendon, 175 A.D.3d 1329, 1331, 108 N.Y.S.3d 36 ; People v. Boutin, 172 A.D.3d at 1254, 99 N.Y.S.3d 417 ).
Accordingly, we agree with the Supreme Court's designation of the defendant as a level three sex offender.
RIVERA, J.P., MALTESE, BARROS, BRATHWAITE NELSON and IANNACCI, JJ., concur.