People of State of New York, respondent, v. Nelson Ramirez, appellant.
Submitted—April 19, 2018
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Nassau County (Robert A. McDonald, J.), dated December 22, 2016, 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.
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 [Sex Offender Registration Act] 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 People v. Gillotti, 23 NY3d 841, 861; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4  ). 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 over-assessment of the defendant's dangerousness and risk of sexual recidivism (see People v. Gillotti, 23 NY3d at 861; People v. Champagne, 140 AD3d 719, 720).
Here, although the Supreme Court erroneously applied a “clear and convincing” standard to the defendant's application for a downward departure, the record is sufficient for this Court to make its own findings of fact and conclusions of law (see People v. Brown, 136 AD3d 698, 699; People v. Watson, 95 AD3d 978, 979; People v. Bowden, 88 AD3d 972, 973). A defendant's response to treatment may qualify as a ground for a downward departure where the response is exceptional (see People v. Washington, 84 AD3d 910, 911). On the record presented, the defendant failed to establish, by a preponderance of the evidence, that his response to treatment was exceptional (see People v. Velasquez, 145 AD3d 924, 924; People v. Wallace, 144 AD3d 775, 776).
The defendant was not denied the effective assistance of counsel (see People v. Butler, 157 AD3d 727; People v. Eaton, 105 AD3d 722, 724; People v. Bowles, 89 AD3d 171, 179; see also Strickland v. Washington, 466 U.S. 668; People v. Benevento, 91 N.Y.2d 708, 713–714; People v. Baldi, 54 N.Y.2d 137, 147).
Accordingly, the defendant was properly designated a level two sex offender.
RIVERA, J.P., DILLON, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.
Clerk of the Court