PEOPLE v. HENDRICKSON (2020)

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that County Court erred in refusing to grant him a downward departure from his presumptive risk level.  We reject that contention.

It is well settled that “a defendant's response to treatment, ‘if exceptional’ ․, may constitute a mitigating factor to serve as the basis for a downward departure” (People v. Bernecky, 161 A.D.3d 1540, 1541, 76 N.Y.S.3d 723 [4th Dept. 2018], lv denied 32 N.Y.3d 901, 2018 WL 4135030 [2018], quoting Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 17 [2006];  see People v. Davis, 170 A.D.3d 1519, 1520, 94 N.Y.S.3d 422 [4th Dept. 2019], lv denied 33 N.Y.3d 907, 2019 WL 2439978 [2019]).  The defendant has the burden of establishing by a preponderance of the evidence that his or her response to treatment was exceptional (see Davis, 170 A.D.3d at 1520, 94 N.Y.S.3d 422;  Bernecky, 161 A.D.3d at 1541, 76 N.Y.S.3d 723).  Nevertheless, a court errs when it concludes “that an offender's participation in treatment is adequately taken into account by the risk assessment instrument” without also considering whether the defendant established that he or she made an exceptional response to treatment and, if so, whether the court should exercise its discretion to grant a downward departure (People v. Migliaccio, 90 A.D.3d 879, 880, 935 N.Y.S.2d 603 [2d Dept. 2011];  see People v. Lewis, 140 A.D.3d 1697, 1697, 32 N.Y.S.3d 789 [4th Dept. 2016]).  Here, the court properly considered defendant's individual response to treatment and determined that defendant had failed to meet his burden of establishing that it warranted a downward departure (see People v. June, 150 A.D.3d 1701, 1702, 54 N.Y.S.3d 253 [4th Dept. 2017];  cf. Lewis, 140 A.D.3d at 1697, 32 N.Y.S.3d 789;  People v. Washington, 84 A.D.3d 910, 911, 923 N.Y.S.2d 151 [2d Dept. 2011], lv dismissed 17 N.Y.3d 849, 930 N.Y.S.2d 543, 954 N.E.2d 1169 [2011]).  We see no basis to disturb that determination (see June, 150 A.D.3d at 1702, 54 N.Y.S.3d 253).