Opinion
2015-05-20
PEOPLE of State of New York, respondent, v. William COOK, appellant.
Lynn W.L. Fahey, New York, N.Y. (Warren S. Landau of counsel), for appellant. Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Paul M. Tarr of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Warren S. Landau of counsel), for appellant. Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Paul M. Tarr of counsel), for respondent.
, J.P., MARK C. DILLON, LEONARD B. AUSTIN and SYLVIA O. HINDS–RADIX, JJ.
Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated November 19, 2012, 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.
Contrary to the defendant's contention, in determining his risk level under the Sex Offender Registration Act (Correction Law art. 6–C [hereinafter SORA] ), the Supreme Court did not err in assessing him 20 points under risk factor 7 since the defendant's self-authored “Relapse Prevention Plan” described how the defendant groomed his victims, at least three of whom he knew through his longstanding friendship with their parents, for the primary purpose of victimizing them ( see People v. Mollenkopf, 54 A.D.3d 1136, 1137, 864 N.Y.S.2d 215; People v. Grosfeld, 35 A.D.3d 692, 693, 826 N.Y.S.2d 428).
A court has the discretion to downwardly depart from the presumptive risk level in a proceeding under SORA ( seeCorrection Law § 168 et seq. ; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [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,” and second, the defendant must prove by a preponderance of the evidence the facts necessary to support the existence of that mitigating factor ( People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85; see People v. Worrell, 113 A.D.3d 742, 978 N.Y.S.2d 882; People v. Martinez–Guzman, 109 A.D.3d 462, 970 N.Y.S.2d 93; People v. Washington, 105 A.D.3d 724, 961 N.Y.S.2d 790; People v. Lacewell, 103 A.D.3d 784, 786, 962 N.Y.S.2d 193). In the absence of that twofold showing, the court lacks discretion to downwardly depart from the presumptive risk level ( see People v. Lacewell, 103 A.D.3d at 786, 962 N.Y.S.2d 193; People v. Wyatt, 89 A.D.3d at 128, 931 N.Y.S.2d 85).
Here, the only appropriate mitigating factor that the defendant identified was his assertedly “exceptional” response to sex offender treatment ( People v. Watson, 95 A.D.3d 978, 979, 944 N.Y.S.2d 584; see People v. Washington, 84 A.D.3d 910, 911, 923 N.Y.S.2d 151; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17). The Supreme Court properly determined that the defendant failed to establish by a preponderance of the evidence that his response to sex offender treatment was “exceptional” ( People v. Washington, 105 A.D.3d at 725, 961 N.Y.S.2d 790; see People v. Wyatt, 89 A.D.3d at 128, 931 N.Y.S.2d 85). Consequently, the court lacked the discretion to downwardly depart from the presumptive risk level ( see People v. Pendleton, 112 A.D.3d 600, 975 N.Y.S.2d 908; People v. Martinez, 104 A.D.3d 924, 962 N.Y.S.2d 336; People v. Peeples, 98 A.D.3d 491, 950 N.Y.S.2d 618).
In light of our determination, we need not reach the defendant's remaining contention.