| People v Jordan |
| 2016 NY Slip Op 00701 [136 AD3d 697] |
| February 3, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v William Jordan, Appellant. |
Seymour W. James, Jr., New York, NY (Steven J. Miraglia of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, AntheaH. Bruffee, and Daniel Berman of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County(Firetog, J.), dated May 4, 2012, which, after a hearing, designated him a level three sexoffender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
Correction Law § 168-n (3) requires a court making a risk leveldetermination pursuant to the Sex Offender Registration Act (hereinafter SORA) to"render an order setting forth its determinations and the findings of fact and conclusionsof law on which the determinations are based" (Correction Law § 168-n[3]). Here, the Supreme Court did not adequately set forth its findings of fact andconclusions of law in its order. However, since the record is sufficient for this Court tomake its own findings of fact and conclusions of law, remittal is not required (see People v Welch, 126 AD3d773, 773 [2015]; People vJohnson, 118 AD3d 684, 684 [2014]).
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 [SORA] Guidelines; and (2) establishing the facts in support of itsexistence by a preponderance of the evidence" (People v Wyatt, 89 AD3d 112, 128 [2011]; see People v Gillotti, 23 NY3d841, 861 [2014]). Although a defendant's response to treatment may qualify as aground for a downward departure where the response is exceptional (see People v Washington, 84AD3d 910, 911 [2011]), the defendant failed to establish by a preponderance of theevidence that his response to treatment was exceptional (see People v Torres, 124 AD3d744, 745 [2015]; People vColeman, 122 AD3d 599, 599-600 [2014]; People v Martinez, 104 AD3d 924, 924-925 [2013]).Further, the other factors identified by the defendant were either adequately taken intoaccount by the SORA Guidelines (see People v King, 72 AD3d 1363, 1364 [2010]), or did notwarrant a downward departure from the presumptive risk level.
Accordingly, the Supreme Court properly denied the defendant's request for adownward departure from his presumptive designation as a level three sex offender.Rivera, J.P., Dillon, Roman and Duffy, JJ., concur.