People v. Reyes

189 A.D.3d 1286

134 N.Y.S.3d 207 (Mem)

PEOPLE of State of New York, Respondent,

v.Martin REYES, Appellant.

2018–08736

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

Submitted—March 27, 2020

December 16, 2020

Janet E. Sabel, New York, N.Y. (Rachel L. Pecker of counsel), for appellant.

Michael E. McMahon, District Attorney, Staten Island, N.Y. (Anne Grady of counsel; Esmer Mujaj on the brief), for respondent.

WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Richmond County (Mario F. Mattei, J.), dated June 15, 2018, 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 110 points, 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 sex offender. 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 ).

An offender's response to treatment, if exceptional, can form the basis for a downward departure (see Guidelines at 17; People v. Palomeque, 170 A.D.3d 1055, 1056, 94 N.Y.S.3d 589 ). Although the defendant submitted evidence that he participated in and completed a sex offenders treatment program, he failed to establish by a preponderance of the evidence that his response to treatment was exceptional (see People v. Jimenez, 178 A.D.3d 1099, 1100–1101, 115 N.Y.S.3d 86 ; People v. Santos, 174 A.D.3d 658, 659, 102 N.Y.S.3d 272 ; People v. Palomeque, 170 A.D.3d at 1056, 94 N.Y.S.3d 589 ; People v. Guzman, 110 A.D.3d 863, 863–864, 973 N.Y.S.2d 310 ).

We also agree with the Supreme Court that no downward departure was warranted based on the defendant's deportation subsequent to the SORA adjudication, as he failed to establish that his deportation was, " ‘as a matter of law, an appropriate mitigating factor’ " ( People v. Morrison, 156 A.D.3d 831, 832, 67 N.Y.S.3d 246, quoting People v. Wyatt, 89 A.D.3d at 128, 931 N.Y.S.2d 85 ; see People v. Alvarez, 153 A.D.3d 645, 646, 57 N.Y.S.3d 405 ; People v. Charles, 152 A.D.3d 721, 721–722, 55 N.Y.S.3d 903 ; People v....