PEOPLE v. BROWN (2020)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (William M. Harrington, J.), dated October 25, 2018, 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 was convicted, upon his plea of guilty, of two counts of rape in the second degree.  After a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6–C [hereinafter SORA] ), at which the defendant sought a downward departure from his presumptive level three risk designation, the Supreme Court designated the defendant a level three sex offender.

We agree with the Supreme Court's determination denying the defendant's application for a downward departure to a level two risk designation.  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 [SORA] 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 People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701; see also SORA:  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 (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701; People v. Champagne, 140 A.D.3d 719, 720, 31 N.Y.S.3d 218).

Here, contrary to the defendant's contention, he failed to sustain his burden of proof in support of his application for a downward departure.  While “a defendant's response to treatment may qualify as a ground for a downward departure where the response is exceptional” (People v. Wallace, 144 A.D.3d 775, 776, 40 N.Y.S.3d 561; see People v. Torres, 124 A.D.3d 744, 745–746, 998 N.Y.S.2d 464), the defendant failed to demonstrate that his response to treatment was exceptional (see People v. Bigelow, 175 A.D.3d 1443, 1444, 107 N.Y.S.3d 406; People v. McClendon, 175 A.D.3d 1329, 1331, 108 N.Y.S.3d 36; People v. Figueroa, 138 A.D.3d 708, 709, 27 N.Y.S.3d 885).  The defendant otherwise failed to prove the existence of an appropriate mitigating factor by a preponderance of evidence (see People v. Garcia, 176 A.D.3d 1240, 1241–1242, 109 N.Y.S.3d 668; People v. Saintilus, 169 A.D.3d 838, 839, 94 N.Y.S.3d 128).  Accordingly, we agree with the Supreme Court's determination designating the defendant a level three sex offender.

MASTRO, J.P., MILLER, DUFFY and BRATHWAITE NELSON, JJ., concur.