| People v Torres |
| 2015 NY Slip Op 00515 [124 AD3d 744] |
| January 21, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jesus Torres, Appellant. |
Seymour W. James, Jr., New York, N.Y. (Adrienne M. Gantt of counsel; JessicaTsang on the brief), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, LindaBreen, and Daniel Berman of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County(Sullivan, J.), dated January 7, 2013, which, after a hearing, designated him a level threesex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The People bear the burden of establishing, by clear and convincing evidence, thefacts supporting the assessment of points under the Guidelines issued by the Board ofExaminers of Sex Offenders under New York's Sex Offender Registration Act(hereinafter SORA Guidelines; see Correction Law § 168 etseq.; Sex Offender Registration Act: Risk Assessment Guidelines and Commentaryat 5 [2006]; People v Green,112 AD3d 801, 801 [2013]; People v Harris, 100 AD3d 727, 727 [2012]; People v Thompson, 95 AD3d977, 977 [2012]). In order to meet their burden with respect to the assessment ofpoints under risk factor 11 (Drug or Alcohol Abuse), "the People must show by clear andconvincing evidence that the offender used alcohol in excess either at the time of thecrime or repeatedly in the past" (People v Palmer, 20 NY3d 373, 378 [2013]; see People v Zavala, 114AD3d 653, 654 [2014]). Here, contrary to the defendant's contention, the hearingcourt properly assessed 15 points under risk factor 11. The People submitted evidencethat the defendant himself attributed his commission of the crimes against the twovictims to his drinking before each incident (see People v Filkins, 107 AD3d 1069, 1070 [2013]).
In seeking a departure from the presumptive risk level, a defendant must first identifya mitigating circumstance or circumstances "of a kind or to a degree not adequately takeninto account by the guidelines" (People v Gillotti, 23 NY3d 841, 861 [2014], citing SORAGuidelines at 4). The defendant then has the burden of proving by a preponderance of theevidence the existence of those circumstances in his or her case (see People vGillotti, 23 NY3d at 861, 864). If the defendant makes that twofold showing, thecourt must determine whether the presumptive risk level overassesses the dangerpresented by the defendant and the risk of reoffense and, thus, whether a downwarddeparture is warranted (id. at 861).
Most of the circumstances on which the defendant bases his contentions regarding adownward departure are adequately taken into account under the Guidelines, includinghis lack of [*2]a criminal history before the crimes hecommitted against the victims in this case, his excellent disciplinary record whileincarcerated, and his remorse and acceptance of responsibility. Moreover, althoughresponse to treatment may qualify as a ground for a downward departure where theresponse is exceptional (seePeople v Jackson, 114 AD3d 739, 739-740 [2014]; People v Washington, 84AD3d 910, 910-911 [2011]), the defendant failed to prove by a preponderance ofthe evidence that his response to treatment was exceptional (see People v Coleman, 122AD3d 599 [2014]; People vTisman, 116 AD3d 1018, 1018 [2014]; People v Pendleton, 112 AD3d 600, 601 [2013]). Finally,the Supreme Court did not improvidently exercise its discretion by declining to departfrom the presumptive risk level on the basis of the defendant's health and age (see People v Lucius, 122AD3d 819 [2014]; People vCabrera, 91 AD3d 479, 480 [2012]; People v Curthoys, 77 AD3d 1215, 1217 [2010]; People v Mothersell, 26 AD3d620, 621 [2006]), or on the basis of the combination of all of the factors that thedefendant adequately proved (see People v Grubbs, 107 AD3d 771, 773 [2013]).
Accordingly, the defendant was properly designated a level three sex offender.Balkin, J.P., Dickerson, Sgroi and Cohen, JJ., concur.