People v. Grunwald

201 A.D.3d 825

157 N.Y.S.3d 396 (Mem)

PEOPLE of State of New York, respondent,

v.Joseph GRUNWALD, appellant.

2019–03237

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

Submitted—November 16, 2021

January 19, 2022

Janet E. Sabel, New York, NY (Denise Fabiano of counsel), for appellant.

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

COLLEEN D. DUFFY, J.P., ANGELA G. IANNACCI, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Deborah A. Dowling, J.), dated February 13, 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 his plea of guilty, of sexual abuse in the first degree ( Penal Law § 130.65 ) and sexual abuse in the second degree ( Penal Law § 130.60 ) involving two separate child complainants. After a hearing pursuant to the Sex Offender Registration Act (Correction Law article 6–C; hereinafter SORA), the Supreme Court denied the defendant's request for a downward departure from his presumptive risk level and designated him a level two sex offender. The defendant appeals.

A defendant seeking a downward departure from a 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 (see People v. McGee, 197 A.D.3d 513, 514, 148 N.Y.S.3d 721 ; People v. Maldonado–Escobar, 196 A.D.3d 655, 656, 150 N.Y.S.3d 131 ; People v. Mitchell, 196 A.D.3d 516, 517, 146 N.Y.S.3d 851 ; 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. McGee, 197 A.D.3d at 514, 148 N.Y.S.3d 721 ; People v. Maldonado–Escobar, 196 A.D.3d at 656, 150 N.Y.S.3d 131 ; People v. Mitchell, 196 A.D.3d at 517, 146 N.Y.S.3d 851 ).

Here, the defendant failed to make the initial twofold showing, as he failed to establish facts in support of the existence of a mitigating factor. While a sex offender's response to treatment, if exceptional, can be the basis for a downward departure pursuant to the Guidelines, the defendant failed to demonstrate by a preponderance of the evidence that his response to treatment was exceptional (see People...