People v. Desnoyers

180 A.D.3d 1080

119 N.Y.S.3d 237

PEOPLE of State of New York, Respondent,

v.Andrew DESNOYERS, Appellant.

2013–02826

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

Submitted - December 18, 2019

February 26, 2020

Janet E. Sabel, New York, N.Y. (Lawrence T. Hausman of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Nancy Fitzpatrick Talcott of counsel; Michael Heller on the brief), for respondent.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Michelle A. Armstrong, J.), dated February 11, 2013, 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 this proceeding pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA), the Supreme Court assessed the defendant 125 points, which is within the range for a presumptive designation as a level three sex offender. The court denied the defendant's request for a downward departure from his presumptive risk level and designated him a level three sexually violent offender (see Correction Law §§ 168–a[7][b] ; 168–n). 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 did not demonstrate grounds for a downward departure from his presumptive risk level. An offender's response to treatment, if exceptional, can form the basis for a downward departure (see Guidelines at 17; see also People v. Washington, 84 A.D.3d 910, 911, 923 N.Y.S.2d 151 ). While the defendant demonstrated that he participated and progressed in sex offender and substance abuse treatment, he failed to establish by a preponderance of the evidence that his response to such treatment was exceptional (see People v. Brunjes, 174 A.D.3d 747, 748, 102 N.Y.S.3d 468 ; People v. Boutin, 172 A.D.3d 1253, 99 N.Y.S.3d 417 ).

Further, the defendant's score on the Static–99 and Vermont Assessment of Sex Offender Risk, which are risk assessment tools different from New York's risk assessment instrument (see People v. Curry, 158 A.D.3d 52, 60, 68 N.Y.S.3d 483 ), does not, by itself, constitute a mitigating factor justifying a downward departure from the presumptive risk level (see People v. Santos, 174 A.D.3d 658, 659, 102 N.Y.S.3d 272 ). Moreover, to the extent an offender may rely on individual risk factors in those instruments to demonstrate that he or she is at a lower risk of reoffense or poses less of a danger to the community, ...