| People v Jackson |
| 2014 NY Slip Op 00975 [114 AD3d 739] |
| February 13, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Lemar Jackson, Appellant. |
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andLinda Breen of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Balter,J.), dated August 21, 2012, which, after a hearing, designated him a level three sexuallyviolent offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The defendant contends that he was entitled to a downward departure from thepresumptive risk level because of his alleged "exceptional response" to treatment whileincarcerated. A defendant seeking a downward departure has the initial burden of "(1)identifying, as a matter of law, an appropriate mitigating factor, namely, a factor whichtends to establish a lower likelihood of reoffense or danger to the community and is of akind, or to a degree, that is not otherwise 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]). If the defendant fails to satisfy that twofoldburden, the court lacks discretion to downwardly depart from the presumptive risk level(see People v Washington,105 AD3d 724, 725 [2013]; People v Wyatt, 89 AD3d at 128).
Here, the defendant identified an appropriate mitigating factor that could provide abasis for a discretionary downward departure, as the Sex Offender Registration Act RiskAssessment Guidelines and Commentary recognizes that "[a]n offender's response totreatment, if exceptional, can be the basis for a downward departure" (Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary at 17 [2006]; see People v Washington, 84AD3d 910, 911 [2011]). However, the defendant failed to establish, by apreponderance of the evidence, that his response to treatment was exceptional (see People v Roldan, 111AD3d 909 [2013]; People vGuzman, 110 AD3d 863 [2013], lv denied 22 NY3d 859 [2014]; People vPerez, 104 AD3d 746 [2013]; People v Watson, 95 AD3d 978, 979 [2012]). Accordingly,the Supreme Court properly denied the defendant's application for a downwarddeparture. Dillon, J.P., Leventhal, Hall and Austin, JJ., concur.