Opinion
2013-04-3
PEOPLE of State of New York, respondent, v. Christopher B. WASHINGTON, appellant.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Brennan of counsel), for respondent.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Brennan of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated June 23, 2011, 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.
A court has the discretion to downwardly depart from the presumptive risk level in a proceeding under the Sex Offender Registration Act ( see Correction Law § 168, et seq. ; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006] ), only after the defendant has made a twofold showing. First, the defendant must identify “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 Guidelines” ( People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85;see People v. Madison, 98 A.D.3d 573, 574, 949 N.Y.S.2d 701;People v. Martin, 90 A.D.3d 728, 728, 934 N.Y.S.2d 321;People v. Peeples, 98 A.D.3d 491, 491–492, 950 N.Y.S.2d 618). Second, the defendant must prove by a preponderance of the evidence the facts necessary to support that mitigating factor ( see People v. Wyatt, 89 A.D.3d at 128, 931 N.Y.S.2d 85). In the absence of that twofold showing, the court lacks discretion to downwardly depart from the presumptive risk level ( see People v. Martin, 90 A.D.3d at 728–729, 934 N.Y.S.2d 321;People v. Wyatt, 89 A.D.3d at 128, 931 N.Y.S.2d 85).
Upon remittal after the first appeal in this case ( see People v. Washington, 84 A.D.3d 910, 923 N.Y.S.2d 151), the County Court properly determined that the defendant had failed to establish by a preponderance of the evidence that his response to treatment was “exceptional” ( id. at 911, 923 N.Y.S.2d 151;see People v. Wyatt, 89 A.D.3d at 127–128, 931 N.Y.S.2d 85; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006] ). Consequently, the court properly denied the defendant's application for a downward departure ( see People v. Martinez, 104 A.D.3d 924, 962 N.Y.S.2d 336 [2d Dept. 2013];People v. Peeples, 98 A.D.3d at 491–492, 950 N.Y.S.2d 618).