| People v Migliaccio |
| 2011 NY Slip Op 09296 [90 AD3d 879] |
| December 20, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v William Migliaccio, Appellant. |
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Thomas J. Spota, District Attorney, Riverhead, N.Y. (Anne E. Oh of counsel), forrespondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), datedNovember 22, 2010, which, after a hearing, designated him a level two sex offender pursuant toCorrection Law article 6-C.
Ordered that the order is reversed, on the law, without costs or disbursements, and the matteris remitted to the County Court, Suffolk County, for further proceedings consistent herewith.
At the defendant's hearing pursuant to the Sex Offender Registration Act (Correction Law art6-C; hereinafter SORA), he sought a downward departure from his presumptive risk level based,inter alia, on his response to the therapeutic treatment he had received while incarcerated, whichincluded intensive sex offender treatment, and an independent psychological evaluation whichassessed his current psychological functioning. The County Court denied the defendant'sapplication on the ground that his participation in treatment was adequately taken into account bythe risk assessment instrument in the categories related to acceptance of responsibility andconduct while incarcerated. However, the SORA Risk Assessment Guidelines and Commentaryrecognize that "[a]n offender's response to treatment, if exceptional, can be the basis for adownward departure" (Sex Offender Registration Act: Risk Assessment Guidelines andCommentary, at 17 [2006]; see People vWashington, 84 AD3d 910, 911 [2011]; see also People v Wyatt, 89 AD3d 112 [2011]). Accordingly, theCounty Court erred in holding, as a matter of law, that an offender's participation in treatment isadequately taken into account by the risk assessment instrument and, thus, is not a mitigatingfactor which may form the basis for a downward departure (see People v Washington, 84AD3d at 910).
In view of the County Court's conclusion that treatment is adequately taken into account inthe risk assessment instrument, it did not determine whether the defendant had established, by apreponderance of the evidence, that he made an exceptional response to treatment, and, if so,whether it should exercise its discretion to grant a downward departure "based upon anexamination of all circumstances relevant to the offender's risk of reoffense and danger to thecommunity" (People v Wyatt, 89 AD3d at 128). Accordingly, the matter must be remittedto the County Court, Suffolk County, to determine those issues (see People vWashington, 84 AD3d at 911). We express no opinion as to either issue. Angiolillo, J.P.,Dickerson, Lott and Miller, JJ., concur.