PEOPLE v. GARRETT (2024)

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Karen M. Wilutis, J.), dated September 13, 2023, 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.

At a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C), the County Court assessed the defendant 85 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.

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] [hereinafter Guidelines];  People v. Anthony, 40 N.Y.3d 976, 196 N.Y.S.3d 699, 219 N.E.3d 339;  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 factors 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. Anthony, 40 N.Y.3d 976, 196 N.Y.S.3d 699, 219 N.E.3d 339;  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 offender's response to treatment, if exceptional, may qualify as a mitigating factor that warrants a downward departure (see People v. Flores–Hernandez, 219 A.D.3d 1533, 1534, 196 N.Y.S.3d 771;  People v. Pena, 217 A.D.3d 693, 191 N.Y.S.3d 100;  People v. Payne, 216 A.D.3d 1187, 191 N.Y.S.3d 77;  People v. Lazzari, 169 A.D.3d 837, 838, 92 N.Y.S.3d 656), here, the defendant failed to prove, by a preponderance of the evidence, that his response to treatment was exceptional (see People v. Abdullah, 210 A.D.3d 704, 709, 178 N.Y.S.3d 94;  People v. Cousin, 209 A.D.3d 1047, 1048, 177 N.Y.S.3d 151;  People v. Lopez, 193 A.D.3d 992, 992–993, 142 N.Y.S.3d 831).

The alleged support provided by the defendant's family was adequately taken into account by the Guidelines (see People v. Rucano, 213 A.D.3d 709, 710, 182 N.Y.S.3d 247;  People v. Parisi, 212 A.D.3d 666, 668, 181 N.Y.S.3d 620;  People v. Taylor, 199 A.D.3d 845, 846, 154 N.Y.S.3d 252).  Moreover, the defendant failed to demonstrate how his family support system established a lower likelihood of reoffense or danger to the community (see People v. Koiki, 214 A.D.3d 1006, 1007, 184 N.Y.S.3d 618;  People v. Parisi, 212 A.D.3d at 668, 181 N.Y.S.3d 620).

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

IANNACCI, J.P., FORD, VOUTSINAS and MCCORMACK, JJ., concur.