| People v Peeples |
| 2012 NY Slip Op 05810 [98 AD3d 491] |
| August 1, 2012 |
| Appellate Division, Second Department |
| The People of State of New York, Respondent, v SylvesterPeeples, 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.), entered November 28, 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.
A court has the discretion to downwardly depart from the presumptive risk level in aproceeding under the Sex Offender Registration Act (hereinafter SORA) (see CorrectionLaw art 6-C) only after the defendant makes a twofold showing. First, the defendant mustidentify "as a matter of law, an appropriate mitigating factor, namely, a factor which tends toestablish a lower likelihood of reoffense or danger to the community and is of a kind, or to adegree, that is otherwise not adequately taken into account by the Guidelines" (People v Wyatt, 89 AD3d 112,128 [2011]). Second, the defendant must prove by a preponderance of the evidence the factsnecessary to support that mitigating factor (id.). In the absence of that twofold showing,the court lacks discretion to depart from the presumptive risk level (see People v Martin, 90 AD3d728, 728-729 [2011]; People v Wyatt, 89 AD3d at 124). Here, the only appropriatemitigating factor that the defendant identified was his assertedly "exceptional" response totreatment (People v Washington, 84AD3d 910, 911 [2011]). Inasmuch as the defendant failed to satisfy his burden of proving bya preponderance of the evidence facts supporting a departure on this ground, the court lacked thediscretion to downwardly depart from the presumptive risk level (see People v Watson, 95 AD3d978 [2012]).
The defendant was not deprived of his right to effective representation at the SORA hearing(see People v Bowles, 89 AD3d171, 179 [2011]). Florio, J.P., Balkin, Hall and Miller, JJ., concur.