| People v Roldan |
| 2013 NY Slip Op 07950 [111 AD3d 909] |
| November 27, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Andre Roldan, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J.Dennehy of counsel; Esther Traydman on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (FoleyJ.), dated April 17, 2012, 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.
One of the defendant's contentions on appeal is that he was entitled to a downwarddeparture from the presumptive risk level because he allegedly had an "exceptionalresponse" to treatment while incarcerated. A defendant seeking a downward departurehas the initial burden of "(1) identifying, as a matter of law, an appropriate mitigatingfactor, namely, a factor which tends to establish a lower likelihood of reoffense or dangerto the community and is of a kind, or to a degree, that is not otherwise adequately takeninto account by the Guidelines; and (2) establishing the facts in support of its existenceby a preponderance of the evidence" (People v Wyatt, 89 AD3d 112, 128 [2011]). The SexOffender Registration Act Risk Assessment Guidelines and Commentary 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]). Here, however, thedefendant's evidence did not prove that he had an exceptional response to treatment (see People v Perez, 104 AD3d746, 747 [2013]; People vHays, 99 AD3d 1212, 1213 [2012]; People v Peeples, 98 AD3d 491, 492 [2012]; People v Watson, 95 AD3d978, 979 [2012]).
The defendant's remaining contentions regarding his request for a downwarddeparture are without merit. Accordingly, he was not entitled to a downward departurefrom the presumptive risk level (see People v Peeples, 98 AD3d at 492;People v Watson, 95 AD3d at 979; People v Wyatt, 89 AD3d at 131).Mastro, J.P., Leventhal, Austin and Sgroi, JJ., concur.