PEOPLE v. OJEDA (2023)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Westchester County (Susan Cacace, J.), dated April 7, 2022, 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.

At a hearing to designate the defendant's risk level pursuant to the Sex Offender Registration Act (see Correction Law art 6–C), the defendant sought a downward departure from his presumptive level three risk designation.  The Supreme Court denied the application, and designated the defendant a level three sex offender.  The defendant appeals.

“An offender 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 not otherwise taken into account by the Guidelines, and (2) establishing the facts in support of its existence by a preponderance of the evidence” (People v. Curry, 158 A.D.3d 52, 58, 68 N.Y.S.3d 483;  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. Bigelow, 175 A.D.3d 1443, 107 N.Y.S.3d 406).

Although “advanced age” may constitute a basis for a downward departure (Guidelines at 5), here, the defendant failed to demonstrate that his age at the time of the SORA hearing, 61 years old, constituted an appropriate mitigating factor and would minimize his risk of reoffense, particularly since he committed sex offenses when he was in his 50s (see People v. Rivas, 185 A.D.3d 740, 740–741, 126 N.Y.S.3d 185;  see also People v. Samuels, 199 A.D.3d 1034, 157 N.Y.S.3d 303).  Further, although an exceptional response to sex offender treatment may also qualify as a ground for a downward departure, the mere fact that the defendant in the present case was deemed “motivated” on his sex offender treatment evaluations did not constitute proof by a preponderance of the evidence that he had an exceptional response to treatment (see People v. Santiago, 137 A.D.3d 762, 764, 26 N.Y.S.3d 339;  People v. Watson, 95 A.D.3d 978, 979, 944 N.Y.S.2d 584).  Finally, as to the support the defendant claims he will receive from his mother and brother, he failed to demonstrate how having that support established a lower likelihood of reoffense or danger to the community (see People v. Peoples, 189 A.D.3d 1282, 1283, 137 N.Y.S.3d 381;  People v. Peaks, 207 A.D.3d 482, 483, 169 N.Y.S.3d 514;  People v. Torres, 205 A.D.3d 940, 941, 166 N.Y.S.3d 601).

Accordingly, the defendant failed to meet his burden of proof on his application for a downward departure and the Supreme Court properly designated him a level three sex offender.

BARROS, J.P., BRATHWAITE NELSON, IANNACCI and ZAYAS, JJ., concur.