People v. Rodriguez

159 A.D.3d 842

69 N.Y.S.3d 825 (Mem)

PEOPLE of State of New York, respondent,

v.Joseph RODRIGUEZ, appellant.

2016–13042

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

Submitted—November 16, 2017

March 14, 2018

Seymour W. James, Jr., New York, N.Y. (Michael C. Taglieri of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Joyce Adolfsen, and Daniel Berman of counsel), 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 (Michael J. Brennan, J.), dated November 23, 2016, 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.

"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. Warren, 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] [hereinafter Guidelines] ). Only if this showing is made does the SORA court have the "discretion to grant or deny the departure application based upon an examination of all circumstances relevant to the offender's risk of reoffense and danger to the community" ( People v. Wyatt, 89 A.D.3d at 128, 931 N.Y.S.2d 85 ; see People v. Rocano–Quintuna, 149 A.D.3d 1114, 1115, 53 N.Y.S.3d 170 ; People v. Kohout, 145 A.D.3d 922, 44 N.Y.S.3d 470 ).

Although "advanced age" may constitute a basis for a downward departure (Guidelines at 5; see People v. Alvarez, 153 A.D.3d 645, 57 N.Y.S.3d 405 ; People v. Santiago, 137 A.D.3d 762, 764–765, 26 N.Y.S.3d 339 ), the defendant, who committed the subject offense when he was 58 years old, failed to demonstrate that his age at the time of the SORA determination, 61 years old, "resulted in the over-assessment of his risk to public safety" ( People v. Wyatt, 89 A.D.3d at 129, 931 N.Y.S.2d 85 ) and, thus, did not meet his burden of proof in establishing that this "mitigating circumstance actually exist[ed] in the case at hand" ( People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see People v. Alvarez, 153 A.D.3d at 645, 57 N.Y.S.3d 405; People v. Rocano–Quintuna, 149 A.D.3d at 1114, 53 N.Y.S.3d 170 ; People v. Benoit, 145 A.D.3d 687, 43 N.Y.S.3d 406 ). Furthermore, 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 ; People v. Figueroa, 138 A.D.3d 708, 709, 27 N.Y.S.3d 885 ).

Since the factors identified by the defendant were either adequately taken into account by the Guidelines, or were not proven by a preponderance of the evidence, the Supreme Court properly denied the defendant's request for a downward departure from his...