PEOPLE v. DAVIS (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the amended order so appealed from is unanimously affirmed without costs.

Memorandum:  Defendant appeals from an amended decision and order, issued after our remittal (see People v. Davis, 145 A.D.3d 1625, 44 N.Y.S.3d 837 [4th Dept. 2016], lv dismissed 29 N.Y.3d 976, 52 N.Y.S.3d 285, 74 N.E.3d 669 [2017] ), determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.) and denying his request for a downward departure from his presumptive risk level.  Although Supreme Court should have applied a preponderance of the evidence standard to defendant's request for a downward departure rather than a clear and convincing evidence standard (see People v. Gillotti, 23 N.Y.3d 841, 860–861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ), we conclude that another remittal is not required because the record is sufficient to enable us to determine under the proper standard whether the court erred in denying defendant's request (see People v. Merkley, 125 A.D.3d 1479, 1479, 3 N.Y.S.3d 848 [4th Dept. 2015] ).

Here, defendant's lack of prior criminal history, acceptance of responsibility, and completion of sex offender counseling cannot be mitigating circumstances because they are already adequately taken into account by the guidelines inasmuch as the court did not assign defendant points on the risk assessment instrument for criminal history, lack of acceptance of responsibility, or poor conduct while confined/supervised (see People v. Varin, 158 A.D.3d 1311, 1312, 68 N.Y.S.3d 359 [4th Dept. 2018], lv denied 31 N.Y.3d 905, 78 N.Y.S.3d 711, 103 N.E.3d 782 [2018];  People v. Reber, 145 A.D.3d 1627, 1627–1628, 43 N.Y.S.3d 925 [4th Dept. 2016], lv denied 29 N.Y.3d 906, 57 N.Y.S.3d 710, 80 N.E.3d 403 [2017];  see generally Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).  Although an offender's response to sex offender treatment, if exceptional, can be the basis for a downward departure (see People v. Rivera, 144 A.D.3d 1595, 1596, 40 N.Y.S.3d 687 [4th Dept 2016], lv denied 28 N.Y.3d 915, 52 N.Y.S.3d 292, 74 N.E.3d 677 [2017] ), defendant failed to meet his burden of proving by a preponderance of the evidence that his response to treatment was exceptional.  Regarding defendant's contention that his past employment history is a mitigating circumstance, we conclude that defendant failed to demonstrate by a preponderance of the evidence how this alleged mitigating circumstance would reduce his risk of sexual recidivism or danger to the community (see generally People v. Asfour, 148 A.D.3d 1669, 1671, 50 N.Y.S.3d 648 [4th Dept. 2017], lv denied 29 N.Y.3d 914, 63 N.Y.S.3d 4, 85 N.E.3d 99 [2017];  People v. Loughlin, 145 A.D.3d 1426, 1428, 44 N.Y.S.3d 821 [4th Dept. 2016], lv denied 29 N.Y.3d 906, 57 N.Y.S.3d 710, 80 N.E.3d 403 [2017] ).  The court therefore lacked discretion to depart from the presumptive risk level (see Loughlin, 145 A.D.3d at 1428, 44 N.Y.S.3d 821).