PEOPLE v. HAYE (2018)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Michael J. Brennan, J.), dated May 7, 2015, 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 designated a level two sex offender pursuant to the Sex Offender Registration Act (see Correction Law § 168 et seq.;  hereinafter SORA).  On appeal, the defendant contends that the Supreme Court should have granted his application for a downward departure from his presumptive risk level 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 Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [2006] ).  Here, contrary to the defendant's contention, the fact that he scored in the lowest risk category on the Static–99R actuarial risk assessment instrument does not, standing alone, qualify as an appropriate mitigating factor (see People v. Curry, 158 A.D.3d 52, 56–61, 68 N.Y.S.3d 483).  Further, the defendant's lack of a criminal history before the crimes he committed in this case was adequately taken into account under the Guidelines (see People v. Dipilato, 155 A.D.3d 792, 792–793, 63 N.Y.S.3d 525;  People v. Torres, 124 A.D.3d 744, 745–746, 998 N.Y.S.2d 464).  Although an offender's “advanced age” (Guidelines at 5;  see People v. Santiago, 137 A.D.3d 762, 764–765, 26 N.Y.S.3d 339) and an offender's exceptional response to treatment may qualify as grounds for a downward departure (see People v. Lagville, 136 A.D.3d 1005, 1006, 26 N.Y.S.3d 316), the defendant failed to establish the facts in support of these grounds by a preponderance of the evidence (see People v. Santiago, 137 A.D.3d at 764–765, 26 N.Y.S.3d 339).

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

ROMAN, J.P., LASALLE, CONNOLLY and CHRISTOPHER, JJ., concur.