Here, the defendant identified an appropriate mitigating factor that could provide a basis for a discretionary downward departure ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]; People v. Perez, 104 A.D.3d 746, 960 N.Y.S.2d 503;People v. Watson, 95 A.D.3d at 979, 944 N.Y.S.2d 584;People v. Migliaccio, 90 A.D.3d 879, 880, 935 N.Y.S.2d 603;People v. Washington, 84 A.D.3d 910, 911, 923 N.Y.S.2d 151). In this regard, the SORA Guidelines recognize that “[a]n offender's response to treatment, if exceptional, can be the basis for a downward departure” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]; People v. Martinez, 104 A.D.3d 924, 962 N.Y.S.2d 336;People v. Watson, 95 A.D.3d at 979, 944 N.Y.S.2d 584). However, the defendant failed to establish, by a preponderance of the evidence, the facts in support of its existence ( see People v. Washington, 105 A.D.3d 724, 725, 961 N.Y.S.2d 790;People v. Martinez, 104 A.D.3d at 924–925, 962 N.Y.S.2d 336;People v. Perez, 104 A.D.3d at 746–747, 960 N.Y.S.2d 503;People v. Watson, 95 A.D.3d at 979, 944 N.Y.S.2d 584;People v. Wyatt, 89 A.D.3d at 128, 931 N.Y.S.2d 85).
Although an offender's response to sex offender treatment, if exceptional, may provide a basis for a downward departure (see Guidelines at 17; Swartz, 216 A.D.3d at 1427), we conclude that defendant failed to meet his burden of proving by a preponderance of the evidence that his response to treatment was exceptional (see People v June, 150 A.D.3d 1701, 1702 [4th Dept 2017]; People v Martinez, 104 A.D.3d 924, 924-925 [2d Dept 2013], lv denied 21 N.Y.3d 857 [2013]).
In addition, although defendant's alleged past participation in volunteer activities reflective of his empathy and good character constitutes a proper mitigating circumstance (see Gillotti, 23 N.Y.3d at 864), we conclude that defendant failed to establish the existence of that mitigating circumstance by a preponderance of the evidence inasmuch as it is based exclusively on a brief, self-serving statement that defendant made during his testimony at the hearing (see June, 150 A.D.3d at 1702; People v Martinez, 104 A.D.3d 924, 924-925 [2d Dept 2013], lv denied 21 N.Y.3d 857 [2013]). Defendant further asserts that a downward departure is warranted because the instant offense did not involve forcible compulsion and the victim's lack of consent was based only on her age.
nt failed to prove by the requisite preponderance of the evidence (seePeople v. Gillotti , 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ) that his response to treatment was exceptional (seePeople v. Antonetti , 188 A.D.3d 1630, 1631, 134 N.Y.S.3d 601 [4th Dept. 2020], lv denied 36 N.Y.3d 910, 2021 WL 1217106 [2021] ; Scott , 186 A.D.3d at 1054, 128 N.Y.S.3d 763 ; People v. June , 150 A.D.3d 1701, 1702, 54 N.Y.S.3d 253 [4th Dept. 2017] ). In addition, although defendant's alleged past participation in volunteer activities reflective of his empathy and good character constitutes a proper mitigating circumstance (seeGillotti , 23 N.Y.3d at 864, 994 N.Y.S.2d 1, 18 N.E.3d 701 ), we conclude that defendant failed to establish the existence of that mitigating circumstance by a preponderance of the evidence inasmuch as it is based exclusively on a brief, self-serving statement that defendant made during his testimony at the hearing (seeJune , 150 A.D.3d at 1702, 54 N.Y.S.3d 253 ; People v. Martinez , 104 A.D.3d 924, 924-925, 962 N.Y.S.2d 336 [2d Dept. 2013], lv denied 21 N.Y.3d 857, 2013 WL 2395742 [2013] ). Defendant further asserts that a downward departure is warranted because the instant offense did not involve forcible compulsion and the victim's lack of consent was based only on her age.
We agree with defendant that it is proper to consider his reasons for refusing treatment in the context of a request for a downward departure (seeGraves , 162 A.D.3d at 1660, 79 N.Y.S.3d 798 ). Even assuming, arguendo, that defendant's statement is sufficient to meet the required preponderance of the evidence standard (seePeople v. Gillotti , 23 N.Y.3d 841, 864, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ), we question the credibility of the statement in the absence of any other supporting evidence and conclude that the statement alone merits "little if any weight" in justifying a downward departure ( People v. June , 150 A.D.3d 1701, 1702, 54 N.Y.S.3d 253 [4th Dept. 2017] ; seePeople v. Martinez , 104 A.D.3d 924, 924-925, 962 N.Y.S.2d 336 [2d Dept. 2013], lv denied 21 N.Y.3d 857, 2013 WL 2395742 [2013] ; see alsoGillotti , 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Walker , 125 A.D.3d 1516, 1517, 3 N.Y.S.3d 255 [4th Dept. 2015] ; People v. Smith , 122 A.D.3d 1325, 1326, 995 N.Y.S.2d 890 [4th Dept. 2014] ).
We agree with defendant that it is proper to consider his reasons for refusing treatment in the context of a request for a downward departure (see Graves, 162 A.D.3d at 1660). Even assuming, arguendo, that defendant's statement is sufficient to meet the required preponderance of the evidence standard (see People v Gillotti, 23 N.Y.3d 841, 864 [2014]), we question the credibility of the statement in the absence of any other supporting evidence and conclude that the statement alone merits "little if any weight" in justifying a downward departure (People v June, 150 A.D.3d 1701, 1702 [4th Dept 2017]; see People v Martinez, 104 A.D.3d 924, 924-925 [2d Dept 2013], lv denied 21 N.Y.3d 857 [2013]; see also Gillotti, 23 N.Y.3d at 861; People v Walker, 125 A.D.3d 1516, 1517 [4th Dept 2015]; People v Smith, 122 A.D.3d 1325, 1326 [4th Dept 2014]).
Although "advanced age" may constitute a basis for a downward departure (Guidelines at 5), the defendant failed to demonstrate that his age at the time of the SORA hearing, 58 years old, constituted an appropriate mitigating factor and minimized his risk of reoffense (seePeople v. West, 189 A.D.3d 1481, 1483, 134 N.Y.S.3d 764 ; People v. Ciccarello, 187 A.D.3d 1224, 1226, 133 N.Y.S.3d 604 ; People v. Thorpe, 186 A.D.3d 629, 630, 128 N.Y.S.3d 275 ; People v. Jimenez, 178 A.D.3d 1099, 1101, 115 N.Y.S.3d 86 ). Further, the defendant failed to demonstrate an "exceptional" response to treatment by a preponderance of the evidence (Guidelines at 17; seePeople v. Ralph, 170 A.D.3d at 901–902, 94 N.Y.S.3d 355 ; People v. Martinez, 104 A.D.3d 924, 924–925, 962 N.Y.S.2d 336 ). Moreover, the nature and number of images found to have been possessed by the defendant militated against a downward departure (seePeople v. Smith, 187 A.D.3d at 1229, 131 N.Y.S.3d 572 ; People v. Bolan, 186 A.D.3d 1273, 1274, 127 N.Y.S.3d 891 ).
The defendant also contends that his alleged exceptional response to sex offender treatment constituted a mitigating factor warranting a downward departure from the presumptive risk level. Although a response to treatment may qualify as a ground for a downward departure where the response is "exceptional" (Guidelines at 17; seePeople v. Meaders, 154 A.D.3d 978, 62 N.Y.S.3d 198 ), the defendant failed to establish the facts in support of that ground by a preponderance of the evidence (seePeople v. Santiago, 137 A.D.3d at 764, 26 N.Y.S.3d 339 ; People v. Martinez, 104 A.D.3d 924, 924–925, 962 N.Y.S.2d 336 ; People v. Watson, 95 A.D.3d 978, 979, 944 N.Y.S.2d 584 ). The defendant's submissions included evaluations demonstrating his progress in understanding his crimes.
The People provided clear and convincing evidence that the defendant engaged in unsatisfactory conduct by engaging in sexual misconduct while confined or supervised (seePeople v. Anderson, 151 A.D.3d 767, 768, 56 N.Y.S.3d 240 ; People v. Dallas, 122 A.D.3d 698, 699, 995 N.Y.S.2d 618 ). We agree with the Supreme Court's denial of the defendant's application for a downward departure from his presumptive risk level designation, as he failed to identify and establish the existence of an appropriate mitigating factor that "tends to establish a lower likelihood of reoffense or danger to the community" and was not adequately taken into account by the Guidelines ( People v. Uphael, 140 A.D.3d 1143, 1144, 35 N.Y.S.3d 194 [internal quotation marks omitted]; seePeople v. Santiago, 137 A.D.3d 762, 26 N.Y.S.3d 339 ; People v. Benjamin, 105 A.D.3d 926, 963 N.Y.S.2d 336 ; People v. Martinez, 104 A.D.3d 924, 924–925, 962 N.Y.S.2d 336 ). ROMAN, J.P., SGROI, MALTESE and LASALLE, JJ., concur.
While "[a]n offender's response to treatment, if exceptional, can be the basis for a downward departure" (id. at 17, 894 N.Y.S.2d 633 ), defendant's participation and moderate success in treatment programs does not demonstrate that his response was exceptional (see People v. Pendleton, 112 A.D.3d 600, 601, 975 N.Y.S.2d 908, lv. denied 22 N.Y.3d 861, 2014 WL 593202 ; People v. Watson, 95 A.D.3d 978, 979, 944 N.Y.S.2d 584 ; People v. Parker, 81 A.D.3d 1304, 1304, 916 N.Y.S.2d 557, lv. denied 16 N.Y.3d 713, 2011 WL 1675754 ). Furthermore, defendant's self-serving statements regarding his progress carry little if any weight (see People v. Martinez, 104 A.D.3d 924, 924–925, 962 N.Y.S.2d 336, lv. denied 21 N.Y.3d 857, 2013 WL 2395742 ). We therefore conclude that " ‘defendant failed to prove by a preponderance of the evidence that his response to treatment was exceptional’ " (People v. Butler, 129 A.D.3d 1534, 1535, 11 N.Y.S.3d 757, lv. denied 26 N.Y.3d 904, 2015 WL 5254753 ).