Opinion
No. 2023-02234
07-17-2024
The People of the State of New York, respondent, v. Jose A. Selin-Martinez, appellant.
Raymond A. Tierney, Riverhead, NY (Meaghan Powers of counsel), for respondent. Laurette D. Mulry, Riverhead, NY (Mark J. Ermmarino of counsel), for appellant.
Raymond A. Tierney, Riverhead, NY (Meaghan Powers of counsel), for respondent.
Laurette D. Mulry, Riverhead, NY (Mark J. Ermmarino of counsel), for appellant.
ANGELA G. IANNACCI, J.P. WILLIAM G. FORD JANICE A. TAYLOR LAURENCE L. LOVE, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the County Court, Suffolk County (Karen M. Wilutis, J.), dated February 2, 2023, 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 defendant was convicted, upon his plea of guilty, of course of sexual conduct against a child in the first degree. After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA), the County Court found that the defendant was a presumptive level two sex offender, denied his application for a downward departure from his presumptive risk level, and designated him a level two sex offender.
On appeal, the defendant contends that the People failed to establish by clear and convincing evidence facts to support the assessment of 15 points under risk factor 14 (release without supervision). Contrary to the defendant's contention, the assessment of these points was supported by clear and convincing evidence in the record, including a case summary prepared by the Board of Examiners of Sex Offenders and an order from a United States Immigration Court directing that the defendant be removed from the United States (see People v Avendano, 222 A.D.3d 667, 668; People v Torres 217 A.D.3d 976, 977; People v Tzintzun-Frias, 210 A.D.3d 917, 918).
"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 Bigelow, 175 A.D.3d 1443, 1443, quoting People v Wyatt, 89 A.D.3d 112, 128; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]). "'If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor 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'" (People v Tleis, 222 A.D.3d 1012, 1012, quoting People v Bigelow, 175 A.D.3d at 1444; see People v Gillotti, 23 N.Y.3d 841, 861).
A response to sex offender treatment may qualify as a ground for a downward departure where the defendant is able to demonstrate that his or her response is "exceptional" (Guidelines at 17; see People v Coleman, 225 A.D.3d 792, 794). Here, the defendant failed to demonstrate that he completed such treatment or that his response to the treatment that he participated in was exceptional (see People v Coleman, 225 A.D.3d at 794; People v Pareja-Hidalgo, 222 A.D.3d 892, 894; People v Musmacker, 213 A.D.3d 784, 786). Further, even if the total number of points assessed to the defendant is considered near the low end of the range of a presumptive level two designation, that fact, by itself, does not constitute a ground for a downward departure from the presumptive risk level (see People v Canales, 217 A.D.3d 785, 786; People v Scott, 204 A.D.3d 948, 949; People v Nicholson, 195 A.D.3d 758, 759). Accordingly, the County Court properly denied the defendant's application for a downward departure.
The defendant's remaining contention is unpreserved for appellate review (see People v Hernandez, 225 A.D.3d 903; People v Medina, 225 A.D.3d 798) and, in any event, without merit.
IANNACCI, J.P., FORD, TAYLOR and LOVE, JJ., concur.