Opinion
2013-01980.
10-25-2017
PEOPLE of State of New York, respondent, v. Richard MEADERS, appellant.
Seymour W. James, Jr., New York, NY (Susan Epstein of counsel), for appellant. Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
Seymour W. James, Jr., New York, NY (Susan Epstein of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., BETSY BARROS, VALERIE BRATHWAITE NELSON, and LINDA CHRISTOPHER, JJ.
Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated February 15, 2013, 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.
The Supreme Court properly rejected the defendant's request for a downward departure from the presumptive risk level. "A court determining a defendant's risk level under the Sex Offender Registration Act (hereinafter SORA) may not downwardly depart from the presumptive risk level unless the defendant first identifies and proves by a preponderance of the evidence the facts in support of ‘a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines' " ( People v. Warren, 152 A.D.3d 551, 59 N.Y.S.3d 57, quoting People v. Lathan, 129 A.D.3d 686, 686–687, 8 N.Y.S.3d 921 ; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] ). The defendant's assertion that he should receive a departure because incest offenders pose a lower risk of reoffense is without merit (see People v. Ogata, 124 A.D.3d 416, 998 N.Y.S.2d 189 ; People v. Rodriguez, 67 A.D.3d 596, 889 N.Y.S.2d 176 ). While a defendant's response to treatment may qualify as a ground for a downward departure where the response is exceptional (see People v. Velasquez, 145 A.D.3d 924, 924, 42 N.Y.S.3d 845 ; People v. Washington, 84 A.D.3d 910, 910–911, 923 N.Y.S.2d 151 ), here, the defendant failed to establish by a preponderance of the evidence that his response to treatment was exceptional. The other factors identified by the defendant were either adequately taken into account by the SORA Guidelines, or did not warrant departure from the presumptive risk level.
Accordingly, the Supreme Court properly denied the defendant's request for a downward departure and designated him a level two sex offender.