Opinion
2018–00962
03-27-2019
PEOPLE of State of New York, Respondent, v. Michael EISENBERG, Appellant.
Robert Schuster, Mt. Kisco, NY, for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Christine DiSalvo and William C. Milaccio of counsel), for respondent.
Robert Schuster, Mt. Kisco, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Christine DiSalvo and William C. Milaccio of counsel), for respondent.
WILLIAM F. MASTRO, J.P., HECTOR D. LASALLE, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
ORDERED that the order is affirmed, without costs or disbursements.
The defendant was convicted, upon his plea of guilty, of promoting a sexual performance by a child and possessing an obscene sexual performance by a child. After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), at which the defendant sought a downward departure from his presumptive level three sex offender designation as determined by the Supreme Court, the court designated the defendant a level three sex offender. The defendant appeals.
Contrary to the defendant's contention, the Supreme Court sufficiently "set[ ] forth its determinations and the findings of fact and conclusions of law on which the determinations [were] based" ( Correction Law § 168–n[3] ; see People v. Young, 108 A.D.3d 1232, 1233, 969 N.Y.S.2d 372 ).
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 SORA: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter SORA Guidelines]; People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). 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 over-assessment 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 response to treatment may qualify as a ground for a downward departure where the response is exceptional (see SORA Guidelines at 17; People v. Santiago, 137 A.D.3d 762, 764, 26 N.Y.S.3d 339 ), here, the defendant failed to establish by a preponderance of the evidence that his response to treatment was exceptional (see People v. Whitney, 168 A.D.3d 776, 89 N.Y.S.3d 638 ; People v. Dyson, 130 A.D.3d 600, 600–601, 10 N.Y.S.3d 885 ).
The defendant's remaining contention regarding other factors in support of his request for a downward departure is unpreserved for appellate review, as he failed to raise those factors at the SORA hearing (see People v. Uphael, 140 A.D.3d 1143, 1144–1145, 35 N.Y.S.3d 194 ). In any event, that contention is without merit.
MASTRO, J.P., LASALLE, BARROS and CONNOLLY, JJ., concur.