| People v Perez |
| 2013 NY Slip Op 01538 [104 AD3d 746] |
| March 13, 2013 |
| Appellate Division, Second Department |
| The People of State of New York,Respondent, v Dennis Perez, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marion M. Tang of counsel),for respondent.
Appeal by the defendant, as limited by his brief, from so much of an order of theCounty Court, Suffolk County (Kahn, J.), dated March 9, 2012, as, after a hearing,designated him a level three sex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed insofar as appealed from, without costs ordisbursements.
Contrary to the defendant's contention, the County Court properly denied his requestfor a downward departure from the presumptive risk level three designation. Adownward 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 nototherwise adequately taken into account by the Sex Offender Registration Act Guidelines(see Sex Offender Registration Act: Risk Assessment Guidelines andCommentary at 4 [2006]; People v Watson, 95 AD3d 978, 979 [2012]). A defendantseeking a downward departure has the initial burden of "(1) identifying, as a matter oflaw, an appropriate mitigating factor, namely, a factor which tends to establish a lowerlikelihood of reoffense or danger to the community and is of a kind, or to a degree, that isotherwise not adequately taken into account by the Guidelines; and (2) establishing thefacts in support of its existence by a preponderance of the evidence" (People v Wyatt, 89 AD3d112, 128 [2011]).
Here, the defendant identified the existence of an appropriate mitigating factor thatcould provide a basis for a discretionary downward departure (see Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary at 17 [2006]; Peoplev Watson, 95 AD3d at 979; People v Migliaccio, 90 AD3d 879, 880 [2011]; People v Washington, 84AD3d 910, 911 [2011]). However, as the County Court found, the defendant failedto establish the facts in support of its existence by a preponderance of the evidence(see People v Watson, 95 AD3d at 979; People v Wyatt, 89 AD3d at128). The materials submitted by the defendant did not show that his response totreatment was exceptional (see People v Watson, 95 AD3d at 979). Rivera, J.P.,Angiolillo, Chambers and Roman, JJ., concur.