PEOPLE v. PEREZ (2013)

Appeal by the defendant, as limited by his brief, from so much of an order of the County Court, Suffolk County (Kahn, J.), dated March 9, 2012, as, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

Contrary to the defendant's contention, the County Court properly denied his request for a downward departure from the presumptive risk level three designation. A downward departure from a sex offender's presumptive risk level generally is only warranted where there exists a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the Sex Offender Registration Act Guidelines (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]; People v. Watson, 95 AD3d 978, 979). A defendant seeking a downward departure 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 AD3d 112, 128).

Here, the defendant identified the existence of an appropriate mitigating factor that could provide a basis for a discretionary downward departure (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 17 [2006]; People v. Watson, 95 AD3d at 979; People v. Migliaccio, 90 AD3d 879, 880; People v. Washington, 84 AD3d 910, 911). However, as the County Court found, the defendant failed to establish the facts in support of its existence by a preponderance of the evidence (see People v. Watson, 95 AD3d at 979; People v. Wyatt, 89 AD3d at 128). The materials submitted by the defendant did not show that his response to treatment was exceptional (see People v. Watson, 95 AD3d at 979).