Opinion
No. 2022-06286
11-13-2024
The People of the State of New York, respondent, v. Gregory Lebron, appellant.
Patricia Pazner, New York, NY (Anna Boksenbaum of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Anthea H. Bruffee, and Isaac Rounseville of counsel), for respondent.
Patricia Pazner, New York, NY (Anna Boksenbaum of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Anthea H. Bruffee, and Isaac Rounseville of counsel), for respondent.
MARK C. DILLON, J.P., BARRY E. WARHIT, LILLIAN WAN, DONNA-MARIE E. GOLIA, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (Guy J. Mangano, Jr., J.), entered July 6, 2022, which, after 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.
The defendant was convicted in federal court, upon his plea of guilty, of receipt of child pornography (18 USC § 2252[a][2]). After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C), the Supreme Court assessed the defendant 95 points on the risk assessment instrument, denied his request for a downward departure from his presumptive risk level, and designated him a level two sex offender. On appeal, the defendant contends that the court erred in denying his request 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 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 Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]; People v Gillotti, 23 N.Y.3d 841, 861). 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; People v Khan, 182 A.D.3d 613, 614).
Contrary to the defendant's contention, his risk level was properly assessed. Most of the circumstances cited by the defendant in support of his request for a downward departure were adequately taken into account by the Guidelines, including, inter alia, his acceptance of responsibility and remorse (see People v Ralph, 170 A.D.3d 900, 901), and his lack of a prior criminal record (see People v Edmee, 183 A.D.3d 766, 768). Although an offender's response to treatment, if exceptional, can be the basis for a downward departure (see Guidelines at 17; People v Roelofsen, 195 A.D.3d 962, 963), the defendant failed to establish the facts in support of that ground by a preponderance of the evidence (see People v Porciello, 193 A.D.3d 993, 994; People v Ralph, 170 A.D.3d at 902). Finally, although in some cases involving offenders who possessed child pornography, the assessment of points under risk factors 3 and 7 might result in an overassessment of the risk a defendant poses to the community (see People v Gillotti, 23 N.Y.3d at 861), a downward departure was not warranted here because the nature and number of images found to have been possessed by the defendant militated against a downward departure (see People v Porciello, 193 A.D.3d at 994-995; People v Smith, 187 A.D.3d 1228, 1229).
Accordingly, the Supreme Court properly designated the defendant a level two sex offender.
DILLON, J.P., WARHIT, WAN and GOLIA, JJ., concur.