PEOPLE v. LEWIS (2019)

DECISION & ORDER

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

In 2002, the defendant was convicted, after a jury trial, of rape in the first degree (Penal Law § 130.35[1]), rape in the second degree (Penal Law § 130.30), sexual abuse in the first degree (Penal Law § 130.65[1]), and endangering the welfare of a child (Penal Law § 260.10[1]).  Approaching his release from imprisonment, the Board of Examiners of Sex Offenders assessed the defendant a total of 80 points on the risk assessment instrument (hereinafter RAI), making him a presumptive level two sex offender.  At a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6–C;  hereinafter SORA), the Supreme Court denied the defendant's request for a downward departure from the presumptive risk level and adjudicated 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 [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] ).  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 over-assessment 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, the defendant failed to prove by a preponderance of the evidence that a downward departure was warranted.  “Although ‘advanced age’ may constitute a basis for a downward departure” (People v. Munoz, 155 A.D.3d 1068, 1069, 64 N.Y.S.3d 594), the defendant failed to demonstrate that his age at the time of the SORA hearing, 47 years old, constituted an appropriate mitigating factor and minimized his risk of reoffense (see People v. Tromba, 157 A.D.3d 915, 916, 66 N.Y.S.3d 907;  People v. Munoz, 155 A.D.3d at 1069, 64 N.Y.S.3d 594;  People v. DeJesus, 127 A.D.3d 1047, 1047, 5 N.Y.S.3d 893;  People v. Shelton, 126 A.D.3d 959, 959–960, 6 N.Y.S.3d 121;  People v. Harris, 93 A.D.3d 704, 706, 940 N.Y.S.2d 127).  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;  People v. Migliaccio, 90 A.D.3d 879, 880, 935 N.Y.S.2d 603), the defendant failed to submit evidence that he completed treatment and that his response to such treatment was exceptional.  The defendant's educational and vocational achievements, as well as the support of his family, were adequately taken into account by the SORA Guidelines (see People v. MacCoy, 155 A.D.3d 897, 898, 63 N.Y.S.3d 688;  People v. Rocano–Quintuna, 149 A.D.3d 1114, 1115, 53 N.Y.S.3d 170;  People v. Robinson, 145 A.D.3d 805, 806, 41 N.Y.S.3d 908).

Accordingly, we agree with the Supreme Court's denial of the defendant's request for a downward departure from his presumptive designation as a level two sex offender.

LEVENTHAL, J.P., BARROS, CONNOLLY and IANNACCI, JJ., concur.