People v. Sawyer

169 A.D.3d 840

91 N.Y.S.3d 889 (Mem)

PEOPLE of State of New York, respondent,

v.Robert Darnell SAWYER, appellant.

2018–04421

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

Submitted—November 28, 2018

February 13, 2019

Paul Skip Laisure, New York, N.Y. (Charity L. Brady of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Christopher J. Blira–Koessler of counsel; Robert J. Adler on the brief), for respondent.

JOHN M. LEVENTHAL, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Gene R. Lopez, J.), dated March 20, 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.

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 [Sex Offender Registration Act] 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 ).

Here, the defendant failed to demonstrate that he was entitled to a downward departure due to mitigating circumstances. Although an offender's "advanced age" upon release (Guidelines at 5; see People v. Santiago, 137 A.D.3d 762, 764–765, 26 N.Y.S.3d 339 ; People v. Torres, 124 A.D.3d 744, 746, 998 N.Y.S.2d 464 ) and an offender's exceptional response to treatment may qualify as grounds for a downward departure (see People v. Santiago, 137 A.D.3d at 764, 26 N.Y.S.3d 339 ; People v. Washington, 84 A.D.3d 910, 911, 923 N.Y.S.2d 151 ), the defendant failed to establish the facts in support of these grounds by a preponderance of the evidence (see People v. Whitney, 168 A.D.3d 776, 89 N.Y.S.3d 638 ; People v. Ramirez, 163 A.D.3d 1012, 81 N.Y.S.3d 576 ; People v. Morris, 161 A.D.3d 1111, 73 N.Y.S.3d 905 ; People v. Rodriguez, 159 A.D.3d 842, 69 N.Y.S.3d 825 ; People v. Tromba, 157 A.D.3d 915, 66 N.Y.S.3d 907 ; People v. Santiago, 137 A.D.3d 762, 26 N.Y.S.3d 339 ). Moreover, the remaining factors on which the defendant relied, including his remorse, participation in educational and vocational programs, and release environment, had already been taken into account by the Guidelines (see People v. Rocano–Quintuna, 149 A.D.3d 1114, 1115, 53 N.Y.S.3d 170 ; People v. Robinson, 145 A.D.3d 805, 806, 41 N.Y.S.3d 908 ; People v. Santiago, ...