Opinion
No. 2018-03338
05-25-2022
The People of the State of New York, respondent, v. William Feliciano, appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Rachel Raimondi of counsel), for respondent. Patricia Pazner, New York, NY (Joshua M. Levine of counsel), for appellant
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Rachel Raimondi of counsel), for respondent.
Patricia Pazner, New York, NY (Joshua M. Levine of counsel), for appellant
HECTOR D. LASALLE, P.J., MARK C. DILLON, SHERI S. ROMAN, LARA J. GENOVESI, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (Miriam Cyrulnik, J.), dated December 15, 2017, 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.
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 [Sex Offender Registration Act (hereinafter 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; see People v Gillotti, 23 N.Y.3d 841, 861; see also Sex Offender Registration Act: 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).
Here, the defendant identified an appropriate mitigating factor, his success in his sex offender and substance abuse treatment programs, that could provide a basis for a discretionary downward departure since "[a]n offender's response to treatment, if exceptional, can be the basis for a downward departure" (Guidelines at 17; see People v Rodriguez, 170 A.D.3d 902, 903). However, the defendant failed to demonstrate by a preponderance of the evidence that his response to treatment was "exceptional" (Guidelines at 17; see People v Rodriguez, 170 A.D.3d at 903).
Further, contrary to the defendant's contention, the fact that he received a score on an alternate risk assessment instrument that placed him in the lowest risk category possible for that alternate instrument was insufficient for a downward departure (see People v Curry, 158 A.D.3d 52, 61).
The defendant's remaining contentions are raised for the first time on appeal.
Accordingly, the Supreme Court properly designated the defendant a level two sex offender.
LASALLE, P.J., DILLON, ROMAN and GENOVESI, JJ., concur.