People v. Hallett

159 A.D.3d 840

69 N.Y.S.3d 810 (Mem)

PEOPLE of State of New York, Respondent,

v.Jeffrey HALLETT, Appellant.

2015–04847

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

Submitted—November 16, 2017

March 14, 2018

Paul Skip Laisure, New York, N.Y. (Rebecca J. Gannon of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Anthea H. Bruffee of counsel; Alexander Brennan on the brief), for respondent.

REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, BETSY BARROS, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Mondo, J.), dated May 29, 2015, 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.

Contrary to the defendant's contention, he was not entitled to a downward departure from his presumptive risk level. "A court determining a defendant's risk level under the Sex Offender Registration Act (hereinafter SORA) may not downwardly depart from the presumptive risk level unless the defendant first identifies and proves by a preponderance of the evidence the facts in support of ‘a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines' " ( People v. War ren, 152 A.D.3d 551, 551, 54 N.Y.S.3d 871, quoting People v. Lathan, 129 A.D.3d 686, 687, 8 N.Y.S.3d 921 ; see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85 ; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] ).

While a defendant's response to treatment may qualify as a ground for a downward departure where the response is exceptional (see People v. Washington, 84 A.D.3d 910, 911, 923 N.Y.S.2d 151 ), here, the defendant failed to establish by a preponderance of the evidence that his response to treatment was exceptional (see People v. Velasquez, 145 A.D.3d 924, 924, 42 N.Y.S.3d 845 ; People v. Wallace, 144 A.D.3d 775, 776, 40 N.Y.S.3d 561, lv denied 28 N.Y.3d 914, 2017 WL 525564 ; People v. Figueroa, 138 A.D.3d 708, 709, 27 N.Y.S.3d 885 ). Accordingly, the Supreme Court properly denied his request for a downward departure and designated him a level three sex offender.

RIVERA, J.P., COHEN, MILLER and BARROS, JJ., concur.