PEOPLE v. LORGO (2025)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Anthony M. Battisti, J.), dated April 14, 2025, 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 second degree (Penal Law § 130.80[1][b]).  After a hearing pursuant to the Sex Offender Registration Act (SORA) (Correction Law art 6–C), the Supreme Court assessed the defendant a total of 75 points under the risk assessment instrument, denied the defendant's application for a downward departure from the presumptive risk level, and designated him a level two sex offender.  The defendant appeals.

Contrary to the defendant's contention, the Supreme Court properly denied the defendant's application for a downward departure from presumptive risk level two to risk level one.  “An offender 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 not otherwise taken into account by [the] Guidelines, and (2) establishing the facts in support of its existence by a preponderance of the evidence” (People v. Curry, 158 A.D.3d 52, 58, 68 N.Y.S.3d 483;  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. Khan, 182 A.D.3d 613, 614, 120 N.Y.S.3d 795;  see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701;  People v. Bigelow, 175 A.D.3d 1443, 107 N.Y.S.3d 406).

Here, the defendant failed to establish an appropriate mitigating factor by a preponderance of the evidence.  The defendant failed to demonstrate that his participation in sex offender treatment constituted an appropriate mitigating factor sufficient to warrant a downward departure.  The defendant's willingness to participate in sex offender treatment was taken into account by risk factor 12 (acceptance of responsibility) (see People v. Magnetic, 231 A.D.3d 875, 876, 220 N.Y.S.3d 798;  People v. Garcia, 192 A.D.3d 833, 834, 139 N.Y.S.3d 858).  “ ‘[A]lthough a defendant's response to sex offender treatment may qualify as a ground for a downward departure where response to treatment is exceptional, here, the defendant failed to establish that his response to such treatment was exceptional’ ” (People v. Pareja–Hidalgo, 222 A.D.3d 892, 893, 203 N.Y.S.3d 109, quoting People v. Saunders, 209 A.D.3d 776, 778, 174 N.Y.S.3d 899;  see People v. Zubradt, 224 A.D.3d 856, 206 N.Y.S.3d 312).

Moreover, the fact that the total number of points assessed to the defendant was at the low end of the range for a presumptive risk level two designation did not, by itself, constitute a ground for a downward departure from the presumptive risk level (see People v. Dockery, 233 A.D.3d 808, 810, 224 N.Y.S.3d 110, lv granted 43 N.Y.3d 907, 2025 WL 1688764;  People v. Selin–Martinez, 229 A.D.3d 646, 648, 215 N.Y.S.3d 451;  People v. Rucano, 213 A.D.3d 709, 711, 182 N.Y.S.3d 247).

The defendant's remaining contentions are unpreserved for appellate review (see People v. Howell, 213 A.D.3d 708, 709, 182 N.Y.S.3d 289) and, in any event, without merit (see People v. Modesto, 233 A.D.3d 954, 955, 225 N.Y.S.3d 281).

DILLON, J.P., CHAMBERS, WAN and MCCORMACK, JJ., concur.