PEOPLE v. CHAMORRO (2025)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Guy J. Mangano, Jr., J.), entered September 15, 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.

The defendant was convicted, upon his plea of guilty, of course of sexual conduct against a child in the first degree (Penal Law § 130.75[1][a]).  After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C), the Supreme Court assessed the defendant a total of 75 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.  On appeal, the defendant challenges the denial of his application for a downward departure.

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. 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 (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701;  People v. Champagne, 140 A.D.3d 719, 720, 31 N.Y.S.3d 218).

Contrary to the defendant's contention, he failed to demonstrate his entitlement to a downward departure.  The defendant's acceptance of responsibility and remorse for his actions and lack of a prior criminal record were adequately taken into account by the Guidelines (see People v. Morales, 223 A.D.3d 850, 851, 204 N.Y.S.3d 196;  People v. Palmer, 217 A.D.3d 793, 794, 191 N.Y.S.3d 451).  The defendant's purported family support upon release was also adequately taken into account by the Guidelines (see People v. Jackson, 221 A.D.3d 737, 738, 200 N.Y.S.3d 62;  People v. Davis, 217 A.D.3d 887, 888, 191 N.Y.S.3d 682) and, in any event, did not establish a lower likelihood of reoffense (see People v. Moore, 223 A.D.3d 921, 923, 205 N.Y.S.3d 102;  People v. Gunter, 217 A.D.3d 788, 790, 191 N.Y.S.3d 143).  Moreover, “[w]hile a sex offender's response to treatment, if exceptional, can be the basis for a downward departure pursuant to the Guidelines,” the defendant failed to establish by a preponderance of the evidence that his response to treatment was exceptional (People v. Grunwald, 201 A.D.3d 825, 826, 157 N.Y.S.3d 396;  see People v. Zubradt, 224 A.D.3d 856, 857, 206 N.Y.S.3d 312).

Accordingly, the Supreme Court properly denied the defendant's application for a downward departure from his presumptive risk level and designated the defendant a level two sex offender.

IANNACCI, J.P., CHRISTOPHER, WARHIT and GOLIA, JJ., concur.