Opinion
2021–07645
06-14-2023
PEOPLE of State of New York, respondent, v. Brian PALMER, appellant.
Patricia Pazner, New York, NY (Joshua M. Levine of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Anthea H. Bruffee, and Evan A. Esswein of counsel), for respondent.
Patricia Pazner, New York, NY (Joshua M. Levine of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Anthea H. Bruffee, and Evan A. Esswein of counsel), for respondent.
MARK C. DILLON, J.P., JOSEPH J. MALTESE, LARA J. GENOVESI, JANICE A. TAYLOR, JJ.
DECISION & ORDER Appeal by the defendant from an order of the Supreme Court, Kings County (Guy J. Mangano, Jr., J.), dated October 20, 2021, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
In 2019, the defendant was convicted, upon his plea of guilty, of persistent sexual abuse in connection with an incident where he forcibly touched the complainant's breast. At a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the defendant was assessed 60 points under the risk assessment instrument, which would ordinarily place him within the range for a presumptive level one designation. However, based upon the defendant's prior conviction of a felony sex crime, the defendant was a presumptive level three sex offender pursuant to an automatic override (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006] [hereinafter Guidelines]). The Supreme Court denied the defendant's request for a downward departure and designated him a level three sex offender. The defendant appeals.
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 ; see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see also Guidelines at 4). If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factors 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, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Champagne, 140 A.D.3d 719, 720, 31 N.Y.S.3d 218 ). Here, the defendant contends that his response to treatment programs, remorse, acceptance of responsibility, commitment to continued treatment, "avowed commitment not to repeat past behavior," and postrelease supervision constitute mitigating factors warranting a downward departure from the presumptive risk level. Some of the factors cited by the defendant in support of his application, including his remorse and acceptance of responsibility, were adequately taken into account by the Guidelines (see Guidelines at 15). Accordingly, to the extent that the defendant relied upon these factors in support of his application for a downward departure, he failed to demonstrate that they constituted mitigating circumstances "of a kind or to a degree not adequately taken into account by the [G]uidelines" ( People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see People v. Ralph, 170 A.D.3d 900, 901, 94 N.Y.S.3d 355 ; People v. Santiago, 137 A.D.3d 762, 764, 26 N.Y.S.3d 339 ).
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; see People v. Peaks, 207 A.D.3d 482, 483, 169 N.Y.S.3d 514 ), the defendant failed to establish the facts in support of that ground by a preponderance of the evidence (see People v. Miranda, 211 A.D.3d 976, 178 N.Y.S.3d 463 ; People v. Daley, 164 A.D.3d 931, 932, 79 N.Y.S.3d 916 ). "The fact that the defendant had good attendance at his sex offender treatment program and was responding well to treatment was not proof of an exceptional response" ( People v. Grunwald, 201 A.D.3d 825, 826, 157 N.Y.S.3d 396 ).
The defendant's contention that the Supreme Court should have considered that, as a result of the defendant's postrelease supervision, he will be "living under strict oversight and the threat of additional prison time, giving him a powerful incentive not to reoffend," is unpreserved for appellate review since it was not raised at the SORA hearing (see People v. Melendez, 210 A.D.3d 1121, 1122, 179 N.Y.S.3d 311 ; People v. Bethel, 165 A.D.3d 712, 713, 85 N.Y.S.3d 96 ). In any event, this contention is without merit.
Further, the defendant failed to demonstrate that any of the factors he cited "resulted in the over-assessment of his risk to public safety" ( People v. Wyatt, 89 A.D.3d at 129, 931 N.Y.S.2d 85 ; see People v. Ralph, 170 A.D.3d at 901, 94 N.Y.S.3d 355 ).
Accordingly, the Supreme Court properly designated the defendant a level three sex offender.
DILLON, J.P., MALTESE, GENOVESI and TAYLOR, JJ., concur.