People of State of New York, respondent, v. Franklin Cuenca, appellant. (2026)

Submitted—May 7, 2026

DECISION & ORDER

O/

Appeal by the defendant from an order of the Supreme Court, Queens County (Jerry M. Iannece, J.), dated October 1, 2025.  The order, after a hearing, designated the defendant a level two sex offender pursuant to Correction Law article 6–C.

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

The defendant was convicted, upon his plea of guilty, of course of sexual conduct against a child in the second degree (Penal Law § 130.80[1][b] ).  In October 2020, the Supreme Court held a hearing pursuant to the Sex Offender Registration Act (SORA) (Correction Law art 6–C).  The court assessed the defendant 75 points on the risk assessment instrument, constituting a presumptive risk level two designation.  The defendant requested a downward departure from the presumptive risk level two designation to a risk level one designation.  The court denied the defendant's application for a downward departure from the presumptive risk level.  The court then designated the defendant a level two sex offender.

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 AD3d 112, 128;  see Sex Offender Registration Act:  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 NY3d 841, 861;  People v. Champagne, 140 AD3d 719, 720).

Contrary to the defendant's contention, he failed to sustain his burden of proof in support of his application for a downward departure from the presumptive risk level.  The defendant's lack of force or violence used in the commission of the crime and his acceptance of responsibility were adequately taken into account under the Guidelines (see Guidelines at 7–8, 15–16;  People v. Saintilus, 169 AD3d 838, 839).

Additionally, “[a]lthough an exceptional response to treatment may qualify as a mitigating factor that warrants a downward departure, the defendant failed to demonstrate by a preponderance of the evidence that [his] response to sex offender counseling was exceptional” (People v. Zubradt, 224 AD3d 856, 857 [internal quotation marks omitted]).   The fact that the defendant was assessed points at the low end of the range for a presumptive risk level two designation does not warrant a downward departure (see People v. Perez, 242 AD3d 780, 781).

The defendant's remaining contentions that he is entitled to a downward departure based upon purported mitigating factors, including that the victim's purported lack of consent was due solely to her inability to consent by virtue of age and the defendant's lack of prior criminal history, are unpreserved for appellate review, as he failed to raise those factors at the SORA hearing (see People v. Wilcox, 178 AD3d 1107, 1109), and, in any event, without merit (see People v. Wallace, 240 AD3d 527, 531).

Accordingly, the Supreme Court properly denied the defendant's application for a downward departure from his presumptive risk level two designation.

DUFFY, J.P., WOOTEN, VOUTSINAS and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court