People v. Del-Carmen

186 A.D.3d 878

128 N.Y.S.3d 608

PEOPLE of State of New York, respondent,

v.Marcelo Sanchez DEL–CARMEN, appellant.

2019–03239

Supreme Court, Appellate Division, Second Department, New York.

Submitted—March 5, 2020

August 26, 2020

Paul Skip Laisure, New York, N.Y. (Samuel Barr of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Guy J. Mangano, Jr., J.), dated February 6, 2019, 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 a plea of guilty, of criminal sexual act in the first degree. At a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the Supreme Court denied the defendant's request for a downward departure from his presumptive risk assessment level of two and designated him a level two sex offender. On appeal, the defendant challenges the denial of his request for 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 [SORA] 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 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 (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 failed to establish that a downward departure was warranted. Contrary to the defendant's contention, the fact that his score on the Static–99 classified him as a low risk to reoffend is not a circumstance which, standing alone, may be considered a mitigating factor (see People v. Palomeque, 170 A.D.3d 1055, 1055, 94 N.Y.S.3d 589, citing People v. Curry, 158 A.D.3d 52, 54, 68 N.Y.S.3d 483 ).

The defendant contends that his age was a mitigating factor warranting a downward departure. Although "advanced age" may constitute a basis for a downward departure (Guidelines at 5; see People v. Rodriguez, 159 A.D.3d 842, 842, 69 N.Y.S.3d 825 ; People v. Munoz, 155 A.D.3d 1068, 1069, 64 N.Y.S.3d 594 ), the defendant failed to demonstrate that his age at the time of the SORA hearing, 40 years old, minimized his risk of reoffense and thus constituted an appropriate mitigating factor (see People v. Lewis, 173 A.D.3d 784, 785, 100 N.Y.S.3d 90 ; People v. Palomeque, 170 A.D.3d at 1056, 94 N.Y.S.3d 589 ; People v. Tromba, 157 A.D.3d 915, 916, 66 N.Y.S.3d 907 ).

While "a defendant's response to treatment may qualify as a ground for a downward departure where the response is exceptional" ( People v. Wallace, 144 A.D.3d 775, 776, 40 N.Y.S.3d 561 ; see People v. Torres, 124 A.D.3d 744, 745–746, 998 N.Y.S.2d 464 ; People v. Migliaccio, 90 A.D.3d 879, 880, 935 N.Y.S.2d 603 ), the defendant failed to submit evidence that his response to sex offender treatment was exceptional (see People v. Robinson, 179 A.D.3d 1104, 114 N.Y.S.3d 676 ; People v. Lewis, 173 A.D.3d at...