| People v Watson |
| 2012 NY Slip Op 03617 [95 AD3d 978] |
| May 8, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DavidWatson, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Steven A. Bender and RichardLongworth Hecht of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Westchester County (Cacace,J.), dated December 12, 2011, which, after a hearing, designated him a level two sex offenderpursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
Correction Law § 168-n (3) requires a court making a risk level determination pursuantto the Sex Offender Registration Act (hereinafter SORA) to "render an order setting forth itsdeterminations and the findings of fact and conclusions of law on which the determinations arebased." Here, the County Court failed adequately to set forth findings of fact and conclusions oflaw to support its denial of the defendant's request for a downward departure from hispresumptive designation as a level two sex offender. However, remittal to the County Court isnot required since the record is sufficient for this Court to make its own findings of fact andconclusions of law (see People vHarris, 93 AD3d 704 [2012]; People v Bogert, 91 AD3d 925, 926 [2012]; People v Suber, 91 AD3d 619[2012]; People v Bowden, 88 AD3d972 [2011]).
A downward departure from a sex offender's presumptive risk level generally is onlywarranted where there exists a mitigating factor of a kind, or to a degree, that is not otherwiseadequately taken into account by the SORA Guidelines (see Sex Offender RegistrationAct: Risk Assessment Guidelines and Commentary, at 4 [2006]; People v Fernandez, 91 AD3d737 [2012], lv denied 18 NY3d 811 [2012]). A defendant seeking a downwarddeparture has the initial burden of "(1) identifying, as a matter of law, an appropriate mitigatingfactor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to thecommunity and is of a kind, or to a degree, that is otherwise not adequately taken into account bythe Guidelines; and (2) establishing the facts in support of its existence by a preponderance of theevidence" (People v Wyatt, 89AD3d 112, 128 [2011]). Although the defendant identified the existence of appropriatemitigating factors that could provide a basis for a discretionary downward departure, he failed toestablish the facts in support of the existence of these factors by a preponderance of the evidence.In this regard, we note that while 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 [*2]Act: RiskAssessment Guidelines and Commentary, at 17 [2006]; see People v Washington, 84 AD3d 910, 911 [2011]), the lettersfrom the defendant's treatment providers merely indicated that the defendant, who had been intreatment for about a year, was making good progress. Further, the defendant's retainedpsychiatrist relied in large measure on the defendant's own statements to conclude that he was atlow risk to reoffend, and did not take into consideration other evidence contradicting thedefendant's claims that his involvement with child pornography was episodic and infrequentthrough the years. Accordingly, the materials submitted by the defendant did not satisfy hisburden of demonstrating, by a preponderance of the evidence, the existence of the mitigatingfactors on which he relied (see People v Wyatt, 89 AD3d at 130). Dillon, J.P., Balkin,Eng and Chambers, JJ., concur.