| People v Dyson |
| 2015 NY Slip Op 05657 [130 AD3d 600] |
| July 1, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michael A. Dyson, Appellant. |
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), forappellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Ronnie Jane Lamm ofcounsel), for respondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn,J.), dated October 9, 2014, which, after a hearing, designated him a level two sexoffender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
In determining a defendant's risk level pursuant to the Sex Offender Registration Act(see Correction Law art 6-C [hereinafter SORA]), "[a] downward departure froma sex offender's presumptive risk level generally is only warranted where there exists amitigating factor of a kind, or to a degree, that is not otherwise adequately taken intoaccount by the SORA Guidelines" (People v Watson, 95 AD3d 978, 979 [2012]; seeSex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4[2006]). Although response to treatment may qualify as a ground for a downwarddeparture where the response is exceptional (see People v Coleman, 122 AD3d 599, 599 [2014]; People v Washington, 84AD3d 910, 911 [2011]), the defendant failed to prove by a preponderance of theevidence that his response to treatment was exceptional (see People v Torres, 124 AD3d744, 746 [2015]; People v Coleman, 122 AD3d at 599-600; People v Tisman, 116 AD3d1018, 1019 [2014]; Peoplev Pendleton, 112 AD3d 600, 601 [2013]).
Accordingly, the County Court properly denied the defendant's request for adownward departure from his presumptive designation as a level two sex offender, anddesignated him a level two sex offender. Dillon, J.P., Dickerson, Roman and LaSalle, JJ.,concur.