| People v Martinez |
| 2013 NY Slip Op 02060 [104 AD3d 924] |
| March 27, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Ruben Martinez, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Brennan ofcounsel), for respondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn,J.), dated May 1, 2012, which, after a hearing, designated him a level three sex offenderpursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The defendant contends that the County Court should have departed from thepresumptive risk level because he allegedly had an "exceptional response" to treatmentwhile incarcerated. A downward departure from a sex offender's presumptive risk levelgenerally is warranted only where there exists a mitigating factor of a kind, or to adegree, that is not otherwise adequately taken into account by the Sex OffenderRegistration Act (hereinafter SORA) Guidelines (see Sex Offender RegistrationAct: Risk Assessment Guidelines and Commentary at 4 [2006]; People v Fernandez, 91 AD3d737 [2012]). A defendant seeking a downward departure has the initial burden of"(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factorwhich tends to establish a lower likelihood of reoffense or danger to the community andis of a kind, or to a degree, that is otherwise not adequately taken into account by theGuidelines; and (2) establishing the facts in support of its existence by a preponderanceof the evidence" (People vWyatt, 89 AD3d 112, 128 [2011]). While the SORA Guidelines recognize that"[a]n offender's response to treatment, if exceptional, can be the basis for a downwarddeparture" (Sex Offender Registration Act: Risk Assessment Guidelines andCommentary at 17 [2006]; seePeople v Washington, 84 AD3d 910, 911 [2011]), the defendant failed to provesuch a basis. Indeed, other than his own self-serving testimony regarding the treatmentprograms in which he participated while incarcerated and the effect of such programsupon his character, the defendant offered no proof to support his contention that he hadan exceptional response to treatment so as to warrant a downward departure.Accordingly, inasmuch as the defendant failed to satisfy his burden of proving by apreponderance of the evidence facts supporting a departure on this ground, the courtlacked the discretion to downwardly depart from the presumptive risk level (see People v Peeples, 98 AD3d491 [2012]; People vWatson, 95 AD3d 978 [2012]; People v Wyatt, 89 AD3d at 130).Skelos, J.P., Leventhal, Austin and Sgroi, JJ., concur.