Steven Banks, New York, N.Y. (Lawrence T. Hausman of counsel), for appellant.
Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
REINALDO E. RIVERA, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, SYLVIA O. HINDS-RADIX, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Richmond County (Meyer, J.), dated June 2, 2011, 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, the Supreme Court properly denied his request for a downward departure from the presumptive risk level three designation. A downward departure from a sex offender's presumptive risk level generally is only warranted where there exists a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the Sex Offender Registration Act (hereinafter SORA) Guidelines (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 ; People v Watson, 95 A.D.3d 978, 979). A defendant seeking a downward departure 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 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).
Here, the defendant identified an appropriate mitigating factor that could provide a basis for a discretionary downward departure (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 ; People v Perez, 104 A.D.3d 746; People v Watson, 95 A.D.3d at 979; People v Migliaccio, 90 A.D.3d 879, 880; People v Washington, 84 A.D.3d 910, 911). In this regard, the SORA Guidelines recognize that "[a]n offender's response to treatment, if exceptional, can be the basis for a downward departure" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 ; People v Martinez, 104 A.D.3d 924; People v Watson, 95 A.D.3d at 979). However, the defendant failed to establish, by a preponderance of the evidence, the facts in support of its existence (see People v Washington, 105 A.D.3d 724, 725; People v Martinez, 104 A.D.3d at 924-925; People v Perez, 104 A.D.3d at 746-747; People v Watson, 95 A.D.3d at 979; People v Wyatt, 89 A.D.3d at 128).
The defendant's remaining contention is without merit.
RIVERA, J.P., SGROI, COHEN and HINDS-RADIX, JJ., ...