PEOPLE v. ANTONETTI (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 ([SORA] 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.

Correction Law § 168-n (3) requires a court making a risk level determination pursuant to SORA to “render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based.” Here, defendant requested a downward departure from his presumptive risk level based upon two mitigating factors, i.e., his completion of a sex offender treatment program and his progress in substance abuse treatment. Although the court addressed defendant's completion of a sex offender treatment program, the court made no mention of defendant's progress in a substance abuse treatment program. Inasmuch as the record is sufficient for us to make our own findings of fact and conclusions of law, however, remittal is not required (see People v. Merkley, 125 A.D.3d 1479, 1479, 3 N.Y.S.3d 848 [4th Dept. 2015]; People v. Urbanski, 74 A.D.3d 1882, 1883, 903 N.Y.S.2d 648 [4th Dept. 2010], lv denied 15 N.Y.3d 707, 2010 WL 3583295 [2010]).

On appeal, defendant contends only that the court should have granted his request for a downward departure based on the second mitigating factor. Although defendant is correct 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 [2006]), we conclude that defendant failed to meet his burden of proving by a preponderance of the evidence that his response to substance abuse treatment was exceptional (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, 2017 WL 582073 [2017]; People v. Butler, 129 A.D.3d 1534, 1534-1535, 11 N.Y.S.3d 757 [4th Dept. 2015], lv denied 26 N.Y.3d 904, 2015 WL 5254753 [2015]; see also People v. Lombard, 30 A.D.3d 573, 574, 818 N.Y.S.2d 145 [2d Dept. 2006], lv denied 7 N.Y.3d 712, 824 N.Y.S.2d 603, 857 N.E.2d 1134 [2006]). Initially, defendant failed to submit any evidence to support his contention that an assessment conducted prior to his release to parole supervision suggested that he was unlikely to have a substance abuse problem upon his release. Furthermore, although defendant demonstrated that he participated in substance abuse treatment programs approximately 13 years prior to the SORA hearing, that alone is insufficient to meet defendant's burden (see People v. Desnoyers, 180 A.D.3d 1080, 1081, 119 N.Y.S.3d 237 [2d Dept. 2020]; People v. Brunjes, 174 A.D.3d 747, 748, 102 N.Y.S.3d 468 [2d Dept. 2019], lv denied 34 N.Y.3d 905, 2019 WL 6318036 [2019]).

Moreover, even assuming, arguendo, that defendant demonstrated that his response to substance abuse treatment was exceptional, we nevertheless conclude, based upon the “totality of the circumstances,” including defendant's extensive criminal history, his history of domestic violence, and his minimization of the offense and disparaging statements about the victim in his probation interview, that a downward departure is not warranted (People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]; see Rivera, 144 A.D.3d at 1596, 40 N.Y.S.3d 687).