PEOPLE v. CALDERON (2025)

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Rockland County (Anne Bianchi, J.), dated July 1, 2024, 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 2017, the defendant was convicted in Wisconsin, upon his plea of guilty, of two counts of third degree sexual assault in violation of Wisconsin Statutes § 940.225(3) and another crime.  Following his release from incarceration, the defendant relocated from Wisconsin to New York, and this proceeding was commenced pursuant to the Sex Offender Registration Act (Correction Law art 6–C;  hereinafter SORA).  After a SORA hearing, the County Court assessed the defendant 80 points on the risk assessment instrument, rendering him a presumptive level two sex offender, denied his application for a downward departure from the presumptive risk level, and designated him a level two sex offender.  On appeal, the defendant contends that the court should have granted 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. Cronin, 235 A.D.3d 914, 914, 227 N.Y.S.3d 447 [internal quotation marks omitted], quoting People v. Medina, 209 A.D.3d 775, 776, 174 N.Y.S.3d 901;  see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]).  “If the defendant makes that twofold showing, the SORA court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an over-assessment of the defendant's dangerousness and risk of sexual recidivism” (People v. Cronin, 235 A.D.3d at 914–915, 227 N.Y.S.3d 447 [internal quotation marks omitted];  see People v. Medina, 209 A.D.3d at 776, 174 N.Y.S.3d 901).

Here, the alleged mitigating factors consisting of the defendant's remorse for his conduct and his participation in sex offender treatment were adequately taken into account by the Guidelines (see People v. Cronin, 235 A.D.3d at 915, 227 N.Y.S.3d 447;  People v. Pareja–Hidalgo, 222 A.D.3d 892, 894, 203 N.Y.S.3d 109).  The defendant failed to establish that his response to such treatment was exceptional (see People v. Cronin, 235 A.D.3d at 915, 227 N.Y.S.3d 447;  People v. Pareja–Hidalgo, 222 A.D.3d at 894, 203 N.Y.S.3d 109).  Upon considering the other mitigating factors identified by the defendant, the totality of the circumstances did not warrant a departure to avoid an overassessment of the defendant's dangerousness and risk of sexual recidivism (see People v. Cronin, 235 A.D.3d at 915, 227 N.Y.S.3d 447;  People v. Pareja–Hidalgo, 222 A.D.3d at 894, 203 N.Y.S.3d 109;  People v. Drayton, 208 A.D.3d 903, 173 N.Y.S.3d 346).

Accordingly, the County Court providently exercised its discretion in denying the defendant's application for a downward departure.

CONNOLLY, J.P., VOUTSINAS, LANDICINO and HOM, JJ., concur.