Opinion
2019–07042
11-24-2021
PEOPLE of State of New York, respondent, v. Kevin DAVIS, appellant.
Patricia Pazner, New York, NY (Alice R.B. Cullina of counsel; Andrew Sgarro on the brief), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Ruth E. Ross, and Daniel Berman of counsel), for respondent.
Patricia Pazner, New York, NY (Alice R.B. Cullina of counsel; Andrew Sgarro on the brief), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Ruth E. Ross, and Daniel Berman of counsel), for respondent.
WILLIAM F. MASTRO, J.P., SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, LARA J. GENOVESI, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (Guy James Mangano, Jr., J.), dated June 12, 2019, 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.
In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the Supreme Court assessed the defendant 95 points, denied his request for a downward departure from his presumptive risk level, and designated him a level two sex offender. The defendant appeals.
Contrary to the defendant's contention, the Supreme Court properly assessed 15 points under risk factor 11. The People presented clear and convincing evidence of the defendant's history of drug and alcohol abuse (see People v. Padgett, 170 A.D.3d 1054, 94 N.Y.S.3d 443 ; People v. Aldarondo, 136 A.D.3d 770, 770–771, 24 N.Y.S.3d 531 ; People v. Zavala, 114 A.D.3d 653, 654, 979 N.Y.S.2d 660 ).
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] [hereinafter Guidelines]). 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 his age and alleged exceptional response to treatment constituted mitigating factors warranting a downward departure from the presumptive risk level. The defendant, who committed the offenses when he was in his early forties, failed to demonstrate that his age at the time of the SORA determination, 59 years old, resulted in an overassessment of his risk to public safety (see People v. Bigelow, 175 A.D.3d 1443, 1444, 107 N.Y.S.3d 406 ; People v. Wallason, 169 A.D.3d 728, 729, 91 N.Y.S.3d 726 ). Although a response to treatment, when "exceptional," may qualify as a mitigating factor to be considered (Guidelines at 17; see People v. Washington, 84 A.D.3d 910, 911, 923 N.Y.S.2d 151 ), here, the defendant failed to establish, by a preponderance of the evidence, that his response to treatment was exceptional (see People v. Lopez, 193 A.D.3d 992, 993, 142 N.Y.S.3d 831 ; People v. Belle, 193 A.D.3d 989, 990, 142 N.Y.S.3d 823 ; People v. Ralph, 170 A.D.3d 900, 901–902, 94 N.Y.S.3d 355 ). Nor did the defendant present evidence demonstrating how the remaining factors he identified, even if proven, would have established a lower likelihood of reoffense or danger to the community (see People v. Thorpe, 186 A.D.3d 629, 630, 128 N.Y.S.3d 275 ).
Accordingly, the Supreme Court properly denied the defendant's request for a downward departure and designated him a level two sex offender.
MASTRO, J.P., HINDS–RADIX, BRATHWAITE NELSON and GENOVESI, JJ., concur.