| People v Cook |
| 2015 NY Slip Op 04294 [128 AD3d 927] |
| May 20, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v William Cook, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Warren S. Landau of counsel), forappellant.
Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbartand Paul M. Tarr of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Richmond County(Rienzi, J.), dated November 19, 2012, which, after a hearing, designated him a levelthree sex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
Contrary to the defendant's contention, in determining his risk level under the SexOffender Registration Act (Correction Law art 6-C [hereinafter SORA]), the SupremeCourt did not err in assessing him 20 points under risk factor 7 since the defendant'sself-authored "Relapse Prevention Plan" described how the defendant groomed hisvictims, at least three of whom he knew through his longstanding friendship with theirparents, for the primary purpose of victimizing them (see People v Mollenkopf, 54 AD3d 1136, 1137 [2008]; People v Grosfeld, 35 AD3d692, 693 [2006]).
A court has the discretion to downwardly depart from the presumptive risk level in aproceeding under SORA (see Correction Law § 168 et seq.;Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4[2006]), only after the defendant has made a twofold showing. First, the defendant mustidentify "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 otherwise not adequately taken into account by theGuidelines," and second, the defendant must prove by a preponderance of the evidencethe facts necessary to support the existence of that mitigating factor (People v Wyatt, 89 AD3d112, 128 [2011]; see Peoplev Worrell, 113 AD3d 742 [2014]; People v Martinez-Guzman, 109 AD3d 462 [2013]; People v Washington, 105AD3d 724 [2013]; People vLacewell, 103 AD3d 784, 786 [2013]). In the absence of that twofold showing,the court lacks discretion to downwardly depart from the presumptive risk level (seePeople v Lacewell, 103 AD3d at 786; People v Wyatt, 89 AD3d at 128).
Here, the only appropriate mitigating factor that the defendant identified was hisassertedly "exceptional" response to sex offender treatment (People v Watson, 95 AD3d978, 979 [2012]; see Peoplev Washington, 84 AD3d 910, 911 [2011]; Sex Offender Registration Act: RiskAssessment Guidelines and Commentary at 17). The Supreme Court properly determinedthat the defendant failed to establish by a preponderance of the evidence that his responseto sex offender treatment was "exceptional" (People v Washington, 105 AD3d at725; see People v Wyatt, 89 AD3d at 128). [*2]Consequently, the court lacked the discretion todownwardly depart from the presumptive risk level (see People v Pendleton, 112 AD3d 600 [2013]; People v Martinez, 104 AD3d924 [2013]; People vPeeples, 98 AD3d 491 [2012]).
In light of our determination, we need not reach the defendant's remainingcontention. Skelos, J.P., Dillon, Austin and Hinds-Radix, JJ., concur.