People v. Flores-Hernandez

219 A.D.3d 1533

196 N.Y.S.3d 771

PEOPLE of State of New York, respondent,

v.Jose FLORES–HERNANDEZ, appellant.

2021–08395

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

Submitted—September 5, 2023

September 27, 2023

Patricia Pazner, New York, NY (Samuel Barr of counsel; Natalie Smith on the brief), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Kaley Hanenkrat of counsel), for respondent.

HECTOR D. LASALLE, P.J., BETSY BARROS, HELEN VOUTSINAS, LOURDES M. VENTURA, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Guy J. Mangano, Jr., J.), dated November 10, 2021, 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.

In 2019, the defendant was convicted in the United States District Court for the Southern District of New York, upon his plea of guilty, of possessing child pornography (see 18 USC § 2252 ). In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the Supreme Court assessed the defendant 90 points on the risk assessment instrument (hereinafter RAI), denied his application for a downward departure from the presumptive risk level, and designated him a level two 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. Anthony, 40 N.Y.3d 976, 196 N.Y.S.3d 699, 219 N.E.3d 339 ; 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. Anthony, 40 N.Y.3d 976, 196 N.Y.S.3d 699, 219 N.E.3d 339 ; 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 ).

Although an offender's response to treatment, if exceptional, may qualify as a mitigating factor that warrants a downward departure (see People v. Pena, 217 A.D.3d 693, 191 N.Y.S.3d 100 ; People v. Payne, 216 A.D.3d 1187, 191 N.Y.S.3d 77 ; People v. Rucano, 213 A.D.3d 709, 710, 182 N.Y.S.3d 247 ), here, the defendant failed to prove, by a preponderance of the evidence, that his response to treatment was exceptional (see People v. Abdullah, 210 A.D.3d 704, 706, 178 N.Y.S.3d 94 ; People v. Cousin, 209 A.D.3d 1047, 1048, 177 N.Y.S.3d 151 ).

The alleged support provided by the defendant's family was adequately taken into account by the Guidelines (see People v. Rucano, 213 A.D.3d at 710, 182 N.Y.S.3d 247 ; People v. Parisi, 212 A.D.3d 666, 668, 181 N.Y.S.3d 620 ; People v. Taylor, 199 A.D.3d 845, 846, 154 N.Y.S.3d 252 ). Moreover, the defendant failed to demonstrate how his family support system established a lower likelihood of reoffense or danger to the community (see People v. Koiki, 214 A.D.3d 1006, 1007, 184 N.Y.S.3d 618 ; People v. Parisi, 212 A.D.3d at 668, 181 N.Y.S.3d 620 ).

Further, although lengthy periods of time during which the defendant has been at liberty after the offense are not taken into account by the Guidelines or the RAI (see People v. Sotomayer, 143 A.D.3d 686, 687, 38 N.Y.S.3d 271 ; People v. Abdullah, 31 A.D.3d 515, 516, 818 N.Y.S.2d 267 ), here, the defendant, who spent less than four years at liberty prior to the SORA hearing, failed to establish by a...