PEOPLE v. PEREZ (2025)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Guy J. Mangano, Jr., J.), entered December 9, 2022, 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 (SORA) (Correction Law art 6–C), the Supreme Court assessed the defendant 95 points on the risk assessment instrument, denied the defendant's application for a downward departure from his presumptive risk level, and designated the defendant 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. 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).

Contrary to the defendant's contention, the Supreme Court properly denied his application for a downward departure.  Most of the alleged mitigating factors identified by the defendant, including his expression of remorse and acceptance of responsibility, his completion of rehabilitation and vocational programs, his positive disciplinary record while incarcerated, and his criminal history, were adequately taken into account by the Guidelines (see People v. Gonzalez, 238 A.D.3d 914, 915, 235 N.Y.S.3d 343;  People v. Abdullah, 210 A.D.3d 704, 706, 178 N.Y.S.3d 94).  While “[a]n offender's response to treatment, if exceptional, can form the basis for a downward departure” (People v. Jimenez, 178 A.D.3d 1099, 1100, 115 N.Y.S.3d 86), the defendant failed to establish by a preponderance of the evidence that his response to treatment was exceptional (see People v. Davidson, 232 A.D.3d 913, 914, 223 N.Y.S.3d 674;  People v. Smith, 194 A.D.3d 767, 768, 143 N.Y.S.3d 560).

In addition, although advanced age may constitute a basis for a downward departure, the defendant failed to establish how his age at the time of the SORA determination, 43 years old, constituted an appropriate mitigating factor and minimized his risk of reoffense (see People v. Pareja–Hidalgo, 222 A.D.3d 892, 894, 203 N.Y.S.3d 109;  People v. Thompson, 209 A.D.3d 1049, 1050, 176 N.Y.S.3d 718).  Moreover, the studies relied upon by the defendant failed to demonstrate by a preponderance of the evidence that his age constituted a basis for a downward departure (see People v. Thompson, 209 A.D.3d at 1050, 176 N.Y.S.3d 718;  People v. Rivas, 185 A.D.3d 740, 741, 126 N.Y.S.3d 185).

Further, the defendant's score on the Static–99R risk assessment instrument does not, standing alone, qualify as an appropriate mitigating factor (see People v. Modesto, 233 A.D.3d 954, 955, 225 N.Y.S.3d 281;  People v. Curry, 158 A.D.3d 52, 60, 68 N.Y.S.3d 483).  Moreover, the defendant “did not identify any specific, unique risk factor on the Static–99 that would serve as a mitigating factor in this case” (People v. Vega, 189 A.D.3d 1288, 1289, 134 N.Y.S.3d 203).

Accordingly, the Supreme Court properly designated the defendant a level two sex offender.

MILLER, J.P., WOOTEN, TAYLOR and MCCORMACK, JJ., concur.