Opinion
2018–02790
02-13-2019
PEOPLE of State of New York, Respondent, v. Richard LAZZARI, Appellant.
Clare J. Degnan, White Plains, N.Y. (Salvatore A. Gaetani of counsel; Marisa Finkelberg on the brief), for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco and William C. Milaccio, Kew Gardens, of counsel), for respondent.
Clare J. Degnan, White Plains, N.Y. (Salvatore A. Gaetani of counsel; Marisa Finkelberg on the brief), for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco and William C. Milaccio, Kew Gardens, of counsel), for respondent.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JJ.
DECISION & ORDERORDERED that the order is affirmed, without costs or disbursements.
The defendant pleaded guilty to course of sexual conduct against a child in the first degree and was sentenced to prison. The Supreme Court held a risk level assessment hearing under the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA). The court designated the defendant a presumptive level three sex offender and denied the defendant's request for a downward departure. The defendant appeals.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, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see also SORA: Risk Assessment Guidelines and Commentary at 4 [2006; hereinafter SORA 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 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 ).
The defendant identified an appropriate mitigating factor in that the SORA Guidelines recognize that "[a]n offender's response to treatment, if exceptional, can be the basis for a downward departure" (SORA Guidelines at 17; see People v. Pendleton, 112 A.D.3d 600, 975 N.Y.S.2d 908 ). However, the defendant failed to show by a preponderance of the evidence that his response to treatment was exceptional (see People v. Figueroa, 138 A.D.3d 708, 27 N.Y.S.3d 885 ; People v. Santiago, 137 A.D.3d 762, 26 N.Y.S.3d 339 ).
The defendant's contention that his own alleged sexual abuse as a child is an appropriate mitigating factor is unpreserved for appellate review (see People v. Wallace, 144 A.D.3d 775, 40 N.Y.S.3d 561 ), and we decline to consider it in the interest of justice (see CPL 470.15[3][c] ).
The parties' remaining contentions need not be reached in light of our determination.
RIVERA, J.P., ROMAN, COHEN and HINDS–RADIX, JJ., concur.