PEOPLE v. DIAZ (2020)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Elizabeth A. Foley, J.), dated August 11, 2016, 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.

Following a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6–C;  hereinafter SORA), the Supreme Court designated the defendant a level three sex offender based upon, inter alia, the automatic override for having a prior felony conviction for a sex crime.  The court denied the defendant's request for a downward departure.

We agree with the Supreme Court's determination denying the defendant's application for a downward departure.  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] ).  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).

Although “a defendant's response to treatment may qualify as a ground for a downward departure where the response is exceptional,” here, the defendant failed to show by a preponderance of the evidence that his response to treatment, while positive, was exceptional (People v. McClendon, 175 A.D.3d 1329, 1331, 108 N.Y.S.3d 36 [internal quotation marks omitted];  People v. Figueroa, 138 A.D.3d 708, 709, 27 N.Y.S.3d 885).

The defendant's remaining contentions are without merit.

Accordingly, we agree with the Supreme Court's determination to designate the defendant a level three sex offender.

RIVERA, J.P., MALTESE, BARROS, BRATHWAITE NELSON and IANNACCI, JJ., concur.