| People v Coleman |
| 2014 NY Slip Op 07485 [122 AD3d 599] |
| November 5, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Walter Coleman, Appellant. |
Seymour W. James, Jr., New York, N.Y. (Denise Fabiano of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andLinda Breen of counsel; Michael C. Zebrowski on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County(McKay, J.), dated May 31, 2012, which, after a hearing, designated him a level twosexually violent offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
A defendant seeking a downward departure from the presumptive risk level has theinitial burden of "(1) identifying, as a matter of law, an appropriate mitigating factor,namely, a factor 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 [Sex Offender Registration Act (hereinafter SORA)] Guidelines; and (2)establishing the facts in support of its existence by a preponderance of the evidence" (People v Wyatt, 89 AD3d112, 128 [2011]; see Peoplev Gillotti, 23 NY3d 841 [2014]; People v Wortham, 119 AD3d 666 [2014]).
Here, at the SORA hearing, the defendant requested that the Supreme Courtdownwardly depart from his presumptive risk level, relying, inter alia, upon hisparticipation in a sex offender treatment program. In this respect, the defendant identifiedan appropriate mitigating factor that could provide a basis for a discretionary downwarddeparture, as the SORA Risk Assessment Guidelines and Commentary recognizes 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 Tisman, 116 AD3d 1018, 1019 [2014]; People v Watson, 95 AD3d978, 979 [2012]; People vWashington, 84 AD3d 910, 911 [2011]). However, the defendant failed toestablish facts in support of this mitigating factor by a preponderance of the evidence,because he did not establish that his response to treatment was exceptional (seePeople v Tisman, 116 AD3d at 1019; People v Jackson, 114 AD3d 739, 740 [2014]; People v Guzman, 110 AD3d863, 864 [2013]; People vWashington, 105 AD3d 724, 725 [2013]; People v Martinez, 104 AD3d 924, 925 [2013]).
The remaining factors identified by the defendant were either adequately taken intoaccount by the SORA Guidelines (see People v Reede 113 AD3d 663, 664 [2014]; People v Boykin, 102 AD3d937, 938 [2013]), or did not warrant a downward departure from the presumptiverisk level (see People vSheppard, 114 AD3d 405, 406 [2014]; People v Pittman, 113 AD3d 497 [2014]; People v Grubbs, 107 AD3d771, 773 [2013]; People vThomas, 105 AD3d 640 [2013]; People v Harris, 93 AD3d 704, 706 [2012]). [*2]Accordingly, the Supreme Court properly denied thedefendant's request for a downward departure from his presumptive designation as alevel two sex offender. Rivera, J.P., Hall, Austin and Cohen, JJ., concur.