Opinion
2016–09421
02-13-2020
PEOPLE of State of New York, Respondent, v. Jaime DIAZ, Appellant.
Janet E. Sabel, New York, N.Y. (Jose David Rodriguez Gonzalez of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jean M. Joyce, and Andrew S. Ayala of counsel), for respondent.
Janet E. Sabel, New York, N.Y. (Jose David Rodriguez Gonzalez of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jean M. Joyce, and Andrew S. Ayala 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 Supreme Court, Kings County (Elizabeth A. Foley, J.), dated August 11, 2016, 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.
Following a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA), the Supreme Court designated the defendant a level three sex offender based upon, inter alia, the automatic override for having a prior felony conviction for a sex crime. The court denied the defendant's request for a downward departure.
We agree with the Supreme Court's determination denying the defendant's application for a downward departure. 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 ).
Although "a defendant's response to treatment may qualify as a ground for a downward departure where the response is exceptional," here, the defendant failed to show by a preponderance of the evidence that his response to treatment, while positive, was exceptional ( People v. McClendon, 175 A.D.3d 1329, 1331, 108 N.Y.S.3d 36 [internal quotation marks omitted]; People v. Figueroa, 138 A.D.3d 708, 709, 27 N.Y.S.3d 885 ).
The defendant's remaining contentions are without merit.
Accordingly, we agree with the Supreme Court's determination to designate the defendant a level three sex offender.
RIVERA, J.P., MALTESE, BARROS, BRATHWAITE NELSON and IANNACCI, JJ., concur.