| People v Washington |
| 2013 NY Slip Op 02232 [105 AD3d 724] |
| April 3, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Christopher B. Washington,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 June 23, 2011, 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.
A court has the discretion to downwardly depart from the presumptive risk level in aproceeding under the Sex Offender Registration Act (see Correction Law §168 et seq.; Sex Offender Registration Act: Risk Assessment Guidelines andCommentary [2006]), only after the defendant has made a twofold showing. First, thedefendant must identify "as a matter of law, an appropriate mitigating factor, namely, afactor 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 intoaccount by the Guidelines" (People v Wyatt, 89 AD3d 112, 128 [2011]; see People v Madison, 98AD3d 573, 574 [2012]; People v Martin, 90 AD3d 728, 728 [2011]; People v Peeples, 98 AD3d491, 491-492 [2012]). Second, the defendant must prove by a preponderance of theevidence the facts necessary to support that mitigating factor (see People vWyatt, 89 AD3d at 128). In the absence of that twofold showing, the court lacksdiscretion to downwardly depart from the presumptive risk level (see People vMartin, 90 AD3d at 728-729; People v Wyatt, 89 AD3d at 128).
Upon remittal after the first appeal in this case (see People v Washington, 84 AD3d 910 [2011]), theCounty Court properly determined that the defendant had failed to establish by apreponderance of the evidence that his response to treatment was "exceptional" (id. at911; see People v Wyatt, 89 AD3d at 127-128; Sex Offender RegistrationAct: Risk Assessment Guidelines and Commentary at 17 [2006]). Consequently, thecourt properly denied the defendant's application for a downward departure (see People v Martinez, 104AD3d 924 [2013]; People v Peeples, 98 AD3d at 491-492). Balkin, J.P.,Leventhal, Roman and Hinds-Radix, JJ., concur.