| People v Guzman |
| 2013 NY Slip Op 06671 [110 AD3d 863] |
| October 16, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Carmelo Guzman, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbartand Anne Grady of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Richmond County(Meyer, J.), dated June 2, 2011, which, after a hearing, designated him a level three sexoffender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
Contrary to the defendant's contention, the Supreme Court properly denied hisrequest for 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(hereinafter SORA) Guidelines (see Sex Offender Registration Act: RiskAssessment Guidelines and Commentary 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 an appropriate mitigating factor that could provide abasis for a discretionary downward departure (see Sex Offender Registration Act:Risk Assessment Guidelines and Commentary at 17 [2006]; People v Perez, 104 AD3d746 [2013]; People v Watson, 95 AD3d at 979; People v Migliaccio, 90 AD3d879, 880 [2011]; People vWashington, 84 AD3d 910, 911 [2011]). In this regard, the SORA Guidelinesrecognize that "[a]n offender's response to treatment, if exceptional, can be the basis for adownward departure" (Sex Offender Registration Act: Risk Assessment Guidelines andCommentary at 17 [2006]; People v Martinez, 104 AD3d 924 [2013]; People vWatson, 95 AD3d at 979). However, the defendant failed to establish, by apreponderance of the evidence, the facts in support of its existence (see People v Washington, 105AD3d 724, 725 [2013]; People v Martinez, 104 AD3d at 924-925;People v Perez, 104 AD3d at 746-747; People v Watson, 95 AD3d at979; People v Wyatt, 89 AD3d at 128).[*2]
The defendant's remaining contention is withoutmerit. Rivera, J.P., Sgroi, Cohen and Hinds-Radix, JJ., concur.