PEOPLE v. WILCOX (2019)

DECISION & ORDER

ORDERED that the orders are affirmed, without costs or disbursements.

In these proceedings pursuant to the Sex Offender Registration Act (see Correction Law art 6–C;  hereinafter SORA), the Supreme Court, in connection with the defendant's conviction under Indictment No. 625/10, assessed the defendant 175 points and, in connection with the defendant's conviction under Indictment No. 1644/10, assessed the defendant 145 points, both within the range for a presumptive designation as a level three sex offender.  The court denied the defendant's request for a downward departure from his presumptive risk level, and designated him a level three sex offender (see Correction Law § 168–n).  The defendant challenges the denial of his request for a downward departure.

As regards the risk factor determination in connection with the defendant's conviction under Indictment No. 1644/10, while the Supreme Court should not have denied the defendant's application for a downward departure on the ground that it was premature (see People v. Allende, 175 A.D.3d 732, 105 N.Y.S.3d 309;  People v. McKinney, 173 A.D.3d 1074, 100 N.Y.S.3d 353), remittitur is unnecessary.  The record is sufficient for this Court to make its own findings of fact and conclusions of law (see People v. Allende, 175 A.D.3d at 733, 105 N.Y.S.3d 309;  People v. McKinney, 173 A.D.3d at 1075, 100 N.Y.S.3d 353).

As to the risk factor determinations made in connection with the defendant's convictions under both indictment numbers, we agree with the Supreme Court's determination denying the defendant's application for a downward departure to a risk level two determination.  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).

Contrary to the defendant's contention, he failed to sustain his burden of proof in support of his application for a downward departure.  While an offender's response to treatment, if exceptional, can form the basis for a downward departure (see Guidelines at 17;  People v. Washington, 84 A.D.3d 910, 911, 923 N.Y.S.2d 151), the defendant failed to demonstrate by a preponderance of the evidence that his response to treatment was exceptional (see People v. Boutin, 172 A.D.3d 1253, 99 N.Y.S.3d 417;  People v. Eisenberg, 170 A.D.3d 1208, 1209, 94 N.Y.S.3d 863).  To the extent the defendant contends that the Supreme Court should have considered his participation in prison programs offered to the general population, he failed to establish by a preponderance of the evidence that such participation constituted a proper mitigating factor that was not adequately taken into account by the Guidelines (see People v. Santogual, 157 A.D.3d 737, 738, 66 N.Y.S.3d 616).

Contrary to the defendant's contention, the results of the three Static–99R alternate risk assessments, two performed by correctional officials and one performed by the Office of Mental Health, standing alone, do not qualify as mitigating factors (see People v. Curry, 158 A.D.3d 52, 60, 68 N.Y.S.3d 483).

The defendant's contention that he is entitled to a downward departure based upon purported mitigating circumstances including his lack of a sexual-based criminal history, his familial support, and the fact that the crimes of which he was convicted were committed nearly 10 years earlier, is unpreserved for appellate review as he failed to raise them at the SORA hearing (see People v. Morales, 159 A.D.3d 841, 842, 69 N.Y.S.3d 835).  In any event, they are without merit, as he failed to demonstrate that they were not adequately taken into account by the Guidelines.

Accordingly, we agree with the Supreme Court's determinations designating the defendant a level three sex offender.

DILLON, J.P., AUSTIN, ROMAN and CHRISTOPHER, JJ., concur.