| People v Pendleton |
| 2013 NY Slip Op 08063 [112 AD3d 600] |
| December 4, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Walter Pendleton, 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 September 24, 2012, which, after a hearing, designated him a level three sexoffender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed.
At a hearing conducted pursuant to the Sex Offender Registration Act (seeCorrection Law art 6-C; hereinafter SORA), to determine the defendant's SORA risklevel, the defendant requested that the County Court downwardly depart from hispresumptive risk level. Although the defendant identified the existence of an appropriatemitigating factor that could provide a basis for a discretionary downward departure(see Sex Offender Registration Act: Risk Assessment Guidelines andCommentary at 17 [2006]; People v Perez, 104 AD3d 746 [2013]; People v Migliaccio, 90 AD3d879, 880 [2011]; People vWashington, 84 AD3d 910 [2011]), he failed to establish the facts in support ofits existence by a preponderance of the evidence (see People v Perez, 104 AD3dat 746-747; People v Wyatt,89 AD3d 112, 128 [2011]). In that respect, while the case summary prepared by theBoard of Examiners of Sex Offenders indicated that the defendant had completed alcoholand substance abuse treatment, and had participated in sex offender treatment, the casesummary did not show that the defendant's response to treatment was exceptional, andthe defendant did not submit any other evidence to so demonstrate (see People vPerez, 104 AD3d at 747; People v Watson, 95 AD3d 978 [2012]). Accordingly, thecourt lacked the discretion to downwardly depart from the presumptive risk level (see People v Martinez, 104AD3d 924, 925 [2013]; People v Peeples, 98 AD3d 491 [2012]; People vWyatt, 89 AD3d at 128, 130). Skelos, J.P., Cohen, Miller and Hinds-Radix, JJ.,concur.