PEOPLE v. DAVIS (2024)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Craig S. Walker, J.), entered December 18, 2020, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.

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

In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6–C), the Supreme Court assessed the defendant 100 points on the risk assessment instrument, denied his application for a downward departure from his presumptive risk level, and designated him a level two sex offender.  The defendant appeals.

The Supreme Court properly denied the defendant's application for a downward departure from his presumptive risk level.  A defendant seeking a downward departure from the 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 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, 931 N.Y.S.2d 85;  see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [2006];  People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).  “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” (People v. Alvarado, 173 A.D.3d 909, 910, 100 N.Y.S.3d 351;  see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701;  People v. Felton, 175 A.D.3d 734, 735, 105 N.Y.S.3d 301;  People v. Champagne, 140 A.D.3d 719, 720, 31 N.Y.S.3d 218).

Although an exceptional response to sex offender treatment may be a ground for a downward departure, a response which is not exceptional is not a ground for a downward departure (see People v. Hammack, 225 A.D.3d 795, 796, 207 N.Y.S.3d 658).  In this case, the defendant failed to establish by a preponderance of the evidence that his response to sex offender treatment had been exceptional.

The defendant's young age at the time of the offense was actually an aggravating factor, which increased the risk of reoffending (see People v. Melendez, 210 A.D.3d 1121, 1123, 179 N.Y.S.3d 311).

The defendant's remaining contention is without merit.

BARROS, J.P., MALTESE, WOOTEN and DOWLING, JJ., concur.