PEOPLE v. PAREJA HIDALGO (2023)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Guy J. Mangano, Jr., J.), dated April 29, 2022, which, after a hearing, designated the defendant a level two sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is affirmed, without costs or disbursements.

The defendant was convicted, upon his plea of guilty, of rape in the first degree.  At a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C;  hereinafter SORA), the Supreme Court designated the defendant a level two sex offender based upon the assessment of 90 points, and denied the defendant's application for a downward departure to level one.  The defendant appeals.

A defendant seeking a downward departure from a 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 [SORA] Guidelines;  and (2) establishing the facts in support of its existence by a preponderance of the evidence” (People v. Wyatt, 89 AD3d 112, 128;  see People v. Gillotti, 23 NY3d 841, 861;  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 NY3d at 861;  People v. Champagne, 140 AD3d 719, 720).

Here, the purported mitigating factors consisting of the defendant's lack of criminal history, lack of disciplinary record while incarcerated, and participation in sex offender treatment were adequately taken into account by the Guidelines (see People v. Zambrano, 215 AD3d 989, 989;  People v. Laboriel, 210 AD3d 916, 917).  “Moreover, although a defendant's response to sex offender treatment may qualify as a ground for a downward departure where response is exceptional, here, the defendant failed to establish that his response to such treatment was exceptional” (People v. Saunders, 209 AD3d 776, 778 [citations, alterations, and internal quotation marks omitted];  see People v. Del–Carmen, 186 AD3d 878, 879).

Although advanced age can constitute a basis for a downward departure, the defendant failed to establish how his age at the time of the SORA determination, 43 years old, constituted an appropriate mitigating factor and minimized his risk of reoffense (see People v. Musmacker, 213 AD3d 784, 786;  People v. Thompson, 209 AD3d 1049, 1050).

Additionally, “[w]hile this Court has ․ clarified that a defendant's familial relationship with the victim[ ] does not warrant an upward departure, neither does it warrant a downward departure” (People v. Baez, 199 AD3d 1027, 1029;  see People v. Reyes, 189 AD3d 1286, 1287).

Furthermore, contrary to the defendant's contention, none of the factors put forward by the defendant, either singly or in combination with each other, showed that the presumptive risk level overassessed the defendant's dangerousness and risk of sexual recidivism (see People v. Gorostiza, 210 AD3d 1118, 1120;  People v. Rivas, 185 AD3d 740, 741).

The defendant's remaining contentions as to why he should have been granted a downward departure are unpreserved for appellate review, and, in any event, without merit.

Accordingly, the Supreme Court properly denied the defendant's request for a downward departure and designated the defendant a level two sex offender.

IANNACCI, J.P., MILLER, WAN and LANDICINO, JJ., concur.