PEOPLE v. FAHEY (2025)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Nassau County (Robert A. McDonald, J.), entered June 27, 2024, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is affirmed, without costs or disbursements.

The defendant pleaded guilty to rape in the first degree and course of sexual conduct against a child in the second degree.  Following a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C), the Supreme Court assessed the defendant 120 points on the risk assessment instrument, which rendered him a presumptive level three sex offender.  The court denied the defendant's application for a downward departure from the presumptive risk level and designated him a level three 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. Del–Carmen, 186 A.D.3d 878, 878, 128 N.Y.S.3d 608, quoting 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]).  “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. Del–Carmen, 186 A.D.3d at 878, 128 N.Y.S.3d 608).

Contrary to the defendant's contention, the Supreme Court did not err in determining that the defendant's response to sex offender treatment was adequately taken into account by the Guidelines (see People v. Cronin, 235 A.D.3d 914, 915, 227 N.Y.S.3d 447;  People v. Pareja–Hidalgo, 222 A.D.3d 892, 893, 203 N.Y.S.3d 109).  The defendant failed to allege, much less meet his burden of establishing, that his response to treatment was exceptional (cf.  People v. Washington, 84 A.D.3d 910, 923 N.Y.S.2d 151).

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

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