PEOPLE v. PENA (2023)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Ushir Pandit–Durant, J.), dated September 12, 2022, 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 entered a plea of guilty to attempted course of sexual conduct against a child in the first degree.  At a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C), the Supreme Court assessed the defendant 90 points on the risk assessment instrument, denied his application for a downward departure from his presumptive risk level, and designated him a level two sex offender.  On appeal, the defendant challenges the denial of his application for a downward departure from his presumptive risk level.

As a threshold matter, the Supreme Court failed to adequately set forth its findings of fact and conclusions of law with respect to the defendant's application for a downward departure from the presumptive risk level (see Correction Law § 168–n[3];  People v. Balcerak, 212 A.D.3d 662, 663, 181 N.Y.S.3d 612).  Nevertheless, since the record is sufficient for this Court to make its own findings of fact and conclusions of law, remittal is not required (see People v. Balcerak, 212 A.D.3d at 663, 181 N.Y.S.3d 612;  People v. Cahill, 210 A.D.3d 1115, 1116, 179 N.Y.S.3d 299).

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 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] [hereinafter Guidelines]).

Here, the alleged mitigating factors consisting of the defendant's vocational progress while incarcerated, his expression of remorse, and his acceptance of responsibility were adequately taken into account by the Guidelines (see People v. Barrott, 199 A.D.3d 1029, 1030, 154 N.Y.S.3d 803;  People v. Robinson, 145 A.D.3d 805, 806, 41 N.Y.S.3d 908;  People v. Torres, 124 A.D.3d 744, 745–746, 998 N.Y.S.2d 464).  Although an offender's response to treatment, if exceptional, can be the basis for a downward departure (see People v. Garcia, 192 A.D.3d 833, 834, 139 N.Y.S.3d 858), here, the defendant failed to demonstrate by a preponderance of the evidence that his response to treatment was exceptional (see People v. Torres, 124 A.D.3d at 746, 998 N.Y.S.2d 464;  People v. Coleman, 122 A.D.3d 599, 599–600, 995 N.Y.S.2d 223).

Accordingly, the Supreme Court properly denied the defendant's application for a downward departure from his presumptive risk level and designated him a level two sex offender.

BARROS, J.P., CHAMBERS, WARHIT and TAYLOR, JJ., concur.