People v. Rubino

178 A.D.3d 1104

112 N.Y.S.3d 546 (Mem)

PEOPLE of State of New York, Respondent,

v.Robert RUBINO, Appellant.

2018–12455

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

Submitted—November 20, 2019

December 24, 2019

Paul Skip Laisure, New York, N.Y. (Nao Terai of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee, and Andrew Ayala of counsel), for respondent.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Guy J. Mangano, Jr., J.), dated August 22, 2018, 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 this proceeding pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA), the Supreme Court assessed the defendant 75 points, within the range of a presumptive designation as a level two sex offender. At a hearing, the court denied the defendant's request for a downward departure from his presumptive risk level, and adjudicated 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 [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 SORA: Risk Assessment Guidelines and Commentary at 4 [2006] ). 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 over assessment 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 ).

Here, the defendant failed to prove by a preponderance of the evidence that a downward departure was warranted. In particular, although the defendant provided evidence that he had successfully completed certain treatment programs during his incarceration, he failed to establish by a preponderance of the evidence that his response to treatment was exceptional (see People v. Bigelow , 175 A.D.3d 1443, 1444, 107 N.Y.S.3d 406 ; People v. Figueroa , 138 A.D.3d 708, 709, 27 N.Y.S.3d 885 ; People v. Torres , 124 A.D.3d 744, 745–746, 998 N.Y.S.2d 464 ). In addition, although debilitating illness may constitute a basis for a downward departure, we agree with the Supreme Court's determination that the defendant's purported health conditions did not result in the over assessment...