Opinion
2017–12373
03-17-2021
PEOPLE of State of New York, respondent, v. Warren ORTEGA, appellant.
Janet E. Sabel, New York, N.Y. (Adrienne M. Gantt of counsel; Spence Jones on the brief), for appellant. Michael E. McMahon, District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Alexander Fumelli of counsel), for respondent.
Janet E. Sabel, New York, N.Y. (Adrienne M. Gantt of counsel; Spence Jones on the brief), for appellant.
Michael E. McMahon, District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Alexander Fumelli of counsel), for respondent.
REINALDO E. RIVERA, J.P., SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Richmond County (Alan J. Meyer, J.), dated December 21, 2016, 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.
In this proceeding pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA), the Supreme Court denied the defendant's request for a downward departure from his presumptive risk level, and designated him a level two sex offender (see Correction Law § 168–n ).
Contrary to the defendant's contention, he failed to establish his entitlement to 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, 931 N.Y.S.2d 85 ; People v. Jimenez, 178 A.D.3d 1099, 1100, 115 N.Y.S.3d 86 ; see SORA: Risk Assessment Guidelines and Commentary at 4 [2006; hereinafter the Guidelines]).
Although an exceptional response to sex offender treatment may qualify as a mitigating factor that warrants a downward departure (see People v. Migliaccio, 90 A.D.3d 879, 880, 935 N.Y.S.2d 603 ), the defendant failed to prove by a preponderance of the evidence that his response to treatment was exceptional.
The remaining factors identified by the defendant were either adequately taken into account by the Guidelines, or do not tend to establish a lower likelihood of reoffense or danger to the community.
Accordingly, the Supreme Court properly denied the defendant's request for a downward departure, and designated him a level two sex offender.
RIVERA, J.P., HINDS–RADIX, CONNOLLY and IANNACCI, JJ., concur.