People v. Martinez

23 Citing cases

  1. People v. Santiago

    137 A.D.3d 762 (N.Y. App. Div. 2016)   Cited 132 times

    ard departure where the response is exceptional (see SORA Guidelines at 17; People v. Washington, 84 A.D.3d 910, 910–911, 923 N.Y.S.2d 151), the defendant failed to establish the facts in support of that ground by a preponderance of the evidence (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701; People v. Pendleton, 112 A.D.3d 600, 601, 975 N.Y.S.2d 908). The defendant's submissions established that he successfully completed sex offender treatment and included evaluations demonstrating his progress in understanding his crimes. However, the evidence relied upon by the defendant did not show that the defendant's response to treatment was “exceptional” (SORA Guidelines at 17; see People v. Dyson, 130 A.D.3d 600, 600–601, 10 N.Y.S.3d 885; People v. Torres, 124 A.D.3d at 745, 998 N.Y.S.2d 464; People v. Jackson, 114 A.D.3d 739, 739–740, 980 N.Y.S.2d 152; People v. Pendleton, 112 A.D.3d at 601, 975 N.Y.S.2d 908; People v. Roldan, 111 A.D.3d 909, 910, 975 N.Y.S.2d 681; People v. Martinez, 104 A.D.3d 924, 924–925, 962 N.Y.S.2d 336; People v. Peeples, 98 A.D.3d 491, 491–492, 950 N.Y.S.2d 618; People v. Watson, 95 A.D.3d 978, 979, 944 N.Y.S.2d 584). Finally, the defendant contends that his age upon release is a mitigating factor warranting a downward departure.

  2. People v. Porciello

    193 A.D.3d 993 (N.Y. App. Div. 2021)   Cited 34 times

    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 ).

  3. People v. Pendleton

    112 A.D.3d 600 (N.Y. App. Div. 2013)   Cited 28 times

    ntary at 17 [2006]; People v. Perez, 104 A.D.3d 746, 960 N.Y.S.2d 503; People v. Migliaccio, 90 A.D.3d 879, 880, 935 N.Y.S.2d 603; People v. Washington, 84 A.D.3d 910, 923 N.Y.S.2d 151), he failed to establish the facts in support of its existence by a preponderance of the evidence ( see People v. Perez, 104 A.D.3d at 746–747, 960 N.Y.S.2d 503; People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85). In that respect, while the case summary prepared by the Board of Examiners of Sex Offenders indicated that the defendant had completed alcohol and substance abuse treatment, and had participated in sex offender treatment, the case summary did not show that the defendant's response to treatment was exceptional, and the defendant did not submit any other evidence to so demonstrate ( see People v. Perez, 104 A.D.3d at 747, 960 N.Y.S.2d 503; People v. Watson, 95 A.D.3d 978, 944 N.Y.S.2d 584). Accordingly, the court lacked the discretion to downwardly depart from the presumptive risk level ( see People v. Martinez, 104 A.D.3d 924, 925, 962 N.Y.S.2d 336; People v. Peeples, 98 A.D.3d 491, 950 N.Y.S.2d 618; People v. Wyatt, 89 A.D.3d at 128, 130, 931 N.Y.S.2d 85). SKELOS, J.P., COHEN, MILLER and HINDS–RADIX, JJ., concur.

  4. People v. Ralph

    170 A.D.3d 900 (N.Y. App. Div. 2019)   Cited 20 times

    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.

  5. People v. June

    150 A.D.3d 1701 (N.Y. App. Div. 2017)   Cited 15 times

    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 ).

  6. People v. Reede

    113 A.D.3d 663 (N.Y. App. Div. 2014)   Cited 15 times

    The Supreme Court properly denied the defendant's application for a downward departure from his presumptive risk level two designation. Since the defendant failed to identify a mitigating factor not otherwise adequately taken into account by the Sex Offender Registration Act Guidelines, the Supreme Court lacked the discretion to grant such a downward departure ( see People v. Martinez, 104 A.D.3d 924, 924–925, 962 N.Y.S.2d 336; People v. Whidbee, 101 A.D.3d 840, 954 N.Y.S.2d 887; People v. Peeples, 98 A.D.3d 491, 491–492, 950 N.Y.S.2d 618). The defendant's contention that the Supreme Court deprived him of due process by using a Risk Assessment Instrument in determining his risk level is without merit ( see People v. Guitard, 57 A.D.3d 751, 871 N.Y.S.2d 205; People v. Washington, 47 A.D.3d 908, 909, 849 N.Y.S.2d 442; People v. Flowers, 35 A.D.3d 690, 690–691, 826 N.Y.S.2d 687). MASTRO, J.P., CHAMBERS, LOTT and MILLER, JJ., concur.

  7. People v. Coleman

    122 A.D.3d 599 (N.Y. App. Div. 2014)   Cited 14 times

    In this respect, the defendant identified an appropriate mitigating factor that could provide a basis for a discretionary downward departure, as the SORA Risk Assessment Guidelines and Commentary recognizes 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]; see People v Tisman, 116 AD3d 1018, 1019; People v Watson, 95 AD3d 978, 979; People v Washington, 84 AD3d 910, 911). However, the defendant failed to establish facts in support of this mitigating factor by a preponderance of the evidence, because he did not establish that his response to treatment was exceptional (see People v Tisman, 116 AD3d at 1019; People v Jackson, 114 AD3d 739, 740; People v Guzman, 110 AD3d 863, 864; People v Washington, 105 AD3d 724, 725; People v Martinez, 104 AD3d 924, 925). The remaining factors identified by the defendant were either adequately taken into account by the SORA Guidelines (see People v Reede 113 AD3d 663, 664; People v Boykin, 102 AD3d 937, 938), or did not warrant a downward departure from the presumptive risk level (see People v Sheppard, 114 AD3d 405, 406; People v Pittman, 113 AD3d 497; People v Grubbs, 107 AD3d 771, 773; People v Thomas, 105 AD3d 640; People v Harris, 93 AD3d 704, 706).

  8. People v. Washington

    105 A.D.3d 724 (N.Y. App. Div. 2013)   Cited 12 times

    Upon remittal after the first appeal in this case ( see People v. Washington, 84 A.D.3d 910, 923 N.Y.S.2d 151), the County Court properly determined that the defendant had failed to establish by a preponderance of the evidence that his response to treatment was “exceptional” ( id. at 911, 923 N.Y.S.2d 151;see People v. Wyatt, 89 A.D.3d at 127–128, 931 N.Y.S.2d 85; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006] ). Consequently, the court properly denied the defendant's application for a downward departure ( see People v. Martinez, 104 A.D.3d 924, 962 N.Y.S.2d 336 [2d Dept. 2013];People v. Peeples, 98 A.D.3d at 491–492, 950 N.Y.S.2d 618). BALKIN, J.P., LEVENTHAL, ROMAN and HINDS–RADIX, JJ., concur.

  9. People v. Guzman

    110 A.D.3d 863 (N.Y. App. Div. 2013)   Cited 9 times

    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).

  10. People v. Sooknanan

    119 A.D.3d 540 (N.Y. App. Div. 2014)   Cited 9 times

    People v. Pelaez, 112 A.D.3d 684, 685, 976 N.Y.S.2d 226;People v. Shephard, 101 A.D.3d 978, 978, 956 N.Y.S.2d 152). Accordingly, the People established, by clear and convincing evidence, that the defendant was a “stranger” to the complainant within the meaning of risk factor 7 (Guidelines at 12). Furthermore, contrary to the defendant's contention, the Supreme Court lacked the discretion to downwardly depart from the presumptive risk level, since the defendant failed to identify a mitigating factor not otherwise adequately taken into account by the Guidelines ( see e.g. People v. Reede, 113 A.D.3d 663, 664, 978 N.Y.S.2d 683;People v. Martinez, 104 A.D.3d 924, 925, 962 N.Y.S.2d 336).