Opinion
2013-11-27
PEOPLE of State of New York, respondent, v. Andre ROLDAN, appellant.
Lynn W.L. Fahey, New York, N.Y. (William Kastin of counsel; Mary Wang on the brief), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel; Esther Traydman on the brief), for respondent.
Lynn W.L. Fahey, New York, N.Y. (William Kastin of counsel; Mary Wang on the brief), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel; Esther Traydman on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Foley J.), dated April 17, 2012, 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.
One of the defendant's contentions on appeal is that he was entitled to a downward departure from the presumptive risk level because he allegedly had an “exceptional response” to treatment while incarcerated. A defendant seeking a downward departure 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 not otherwise 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). The Sex Offender Registration Act Risk Assessment Guidelines and Commentary recognize that “[a]n offender's responseto 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. Washington, 84 A.D.3d 910, 911, 923 N.Y.S.2d 151). Here, however, the defendant's evidence did not prove that he had an exceptional response to treatment ( see People v. Perez, 104 A.D.3d 746, 747, 960 N.Y.S.2d 503; People v. Hays, 99 A.D.3d 1212, 1213, 951 N.Y.S.2d 437; People v. Peeples, 98 A.D.3d 491, 492, 950 N.Y.S.2d 618; People v. Watson, 95 A.D.3d 978, 979, 944 N.Y.S.2d 584).
The defendant's remaining contentions regarding his request for a downward departure are without merit. Accordingly, he was not entitled to a downward departure from the presumptive risk level ( see People v. Peeples, 98 A.D.3d at 492, 950 N.Y.S.2d 618; People v. Watson, 95 A.D.3d at 979, 944 N.Y.S.2d 584; People v. Wyatt, 89 A.D.3d at 131, 931 N.Y.S.2d 85). MASTRO, J.P., LEVENTHAL, AUSTIN and SGROI, JJ., concur.