Opinion
04-06-2016
PEOPLE of State of New York, respondent, v. Oscar Remberto FIGUEROA, appellant.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Lauren Tan of counsel), for respondent.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant.Thomas J. Spota, District Attorney, Riverhead, N.Y. (Lauren Tan of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated July 22, 2015, 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 determining a defendant's risk level pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA), a downward departure from a sex offender's presumptive risk level generally is warranted only where there exists a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Vegh, 134 A.D.3d 1084, 21 N.Y.S.3d 719 ; People v. Watson, 95 A.D.3d 978, 979, 944 N.Y.S.2d 584 ; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006] ). Here, in support of his application for a downward departure, the defendant relied upon his completion of a sex offender treatment program and an alcohol treatment program. However, while a defendant's response to treatment may qualify as a ground for a downward departure where the response is exceptional (see People v. Washington, 84 A.D.3d 910, 911, 923 N.Y.S.2d 151 ), the defendant failed to establish by a preponderance of the evidence that his response to treatment was exceptional (see People v. Pendleton, 112 A.D.3d 600, 601, 975 N.Y.S.2d 908 ; People v. Perez, 104 A.D.3d 746, 746–747, 960 N.Y.S.2d 503 ).
The defendant's contention that certain other factors warrant a downward departure is unpreserved for appellate review, as he did not raise these grounds at the SORA hearing (see People v. Fernandez, 91 A.D.3d 737, 738, 936 N.Y.S.2d 556 ; People v. Spring, 83 A.D.3d 1028, 921 N.Y.S.2d 539 ). In any event, the defendant's contention is without merit.
Accordingly, the County Court properly denied the defendant's application for a downward departure to risk level one and designated him a level two sex offender.
BALKIN, J.P., ROMAN, COHEN and HINDS–RADIX, JJ., concur.