| People v Santiago |
| 2016 NY Slip Op 01475 [137 AD3d 762] |
| March 2, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Efrain Santiago, Appellant. |
Lynn W. L. Fahey, New York, NY (William Kastin of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove andAnthea H. Bruffee of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Ozzi,J.), dated November 7, 2012, which, after a hearing, designated him a level three sexuallyviolent offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The defendant was convicted, after a jury trial, of rape in the first degree, attemptedrape in the first degree, and endangering the welfare of a child. Prior to the defendant'srelease from prison, the Board of Examiners of Sex Offenders (hereinafter the Board)completed a risk assessment instrument pursuant to the Sex Offender Registration Act(see Correction Law art 6-C [hereinafter SORA]). The Board determined that thedefendant was a presumptive level three (high risk) sexually violent offender. Thedefendant did not challenge the assessment of points under any of the risk factors.However, the defendant made an application for a downward departure from thepresumptive risk level. The Supreme Court denied the defendant's application for adownward departure and designated him a level three sexually violent offender.
"Under SORA, a court must follow three analytical steps to determine whether or notto order a departure from the presumptive risk level" (People v Gillotti, 23 NY3d 841, 861 [2014]). "At the firststep, the court must decide whether the aggravating or mitigating circumstances allegedby a party seeking a departure are, as a matter of law, of a kind or to a degree notadequately taken into account by the [SORA] guidelines" (id. at 861; seeSex Offender Registration Act: Risk Assessment Guidelines and Commentary[hereinafter SORA Guidelines] at 4 [2006]).
"At the second step, the court must decide whether the party requesting the departurehas adduced sufficient evidence to meet its burden of proof in establishing that thealleged aggravating or mitigating circumstances actually exist in the case at hand"(People v Gillotti, 23 NY3d at 861; see SORA Guidelines at 4, 7). "[T]hePeople cannot obtain an upward departure pursuant to the guidelines unless they provethe existence of certain aggravating circumstances by clear and convincing evidence"(People v Gillotti, 23 NY3d at 862). By contrast, "a defendant must prove theexistence of the mitigating circumstances upon which he or she relies in advocating for adeparture by a mere preponderance of the evidence" (id. at 864).
[*2] "If the party applying for a departure surmounts thefirst two steps, the law permits a departure, but the court still has discretion to refuse todepart or to grant a departure" (id. at 861). "Thus, at the third step, the court mustexercise its discretion by weighing the aggravating and mitigating factors to determinewhether the totality of the circumstances warrants a departure to avoid an over- orunder-assessment of the defendant's dangerousness and risk of sexual recidivism"(id.).
Here, contrary to the defendant's contention, the Supreme Court did not fail to applythe correct burden of proof when it considered his application for a downward departure.Although the record reflects that the court initially evaluated the defendant's applicationunder the "clear and convincing evidence" standard applicable to requests by the Peoplefor an upward departure (id. at 862), the record demonstrates that the courtultimately considered the defendant's application under the lower "preponderance of theevidence" standard that is applicable to a defendant's request for a downward departure(id. at 864; cf. People vBowden, 88 AD3d 972, 973 [2011]).
Contrary to the defendant's further contention, he failed to sustain his burden ofproof in support of his application for a downward departure. Most of the circumstancescited by the defendant in support of his application were adequately taken into accountunder the SORA guidelines, including his release environment (see SORAGuidelines at 17-18), and his remorse and acceptance of responsibility (see id. at15; People v Torres, 124AD3d 744, 745-746 [2015]). Accordingly, to the extent that the defendant reliedupon these factors in support of his application for a downward departure, he failed todemonstrate that they constituted mitigating circumstances "of a kind or to a degree notadequately taken into account by the [SORA] guidelines" (People v Gillotti, 23NY3d at 861; see People vValdez, 123 AD3d 785, 786 [2014]). In any event, the defendant failed todemonstrate by a preponderance of the evidence that these circumstances "resulted in theover-assessment of his risk to public safety" (People v Wyatt, 89 AD3d 112, 129 [2011]).
The defendant also contends that his exceptional response to sex offender treatmentconstituted a mitigating factor warranting a downward departure from the presumptiverisk level. Although a response to treatment may qualify as a ground for a downwarddeparture where the response is exceptional (see SORA Guidelines at 17; People v Washington, 84AD3d 910, 910-911 [2011]), the defendant failed to establish the facts in support ofthat ground by a preponderance of the evidence (see People v Gillotti, 23 NY3dat 861; People v Pendleton,112 AD3d 600, 601 [2013]). The defendant's submissions established that hesuccessfully completed sex offender treatment and included evaluations demonstratinghis progress in understanding his crimes. However, the evidence relied upon by thedefendant did not show that the defendant's response to treatment was "exceptional"(SORA Guidelines at 17; seePeople v Dyson, 130 AD3d 600, 600-601 [2015]; People v Torres, 124AD3d at 745; People vJackson, 114 AD3d 739, 739-740 [2014]; People v Pendleton, 112AD3d at 601; People vRoldan, 111 AD3d 909, 910 [2013]; People v Martinez, 104 AD3d 924, 924-925 [2013]; People v Peeples, 98 AD3d491, 491-492 [2012]; People v Watson, 95 AD3d 978, 979 [2012]).
Finally, the defendant contends that his age upon release is a mitigating factorwarranting a downward departure. Although "advanced age" may constitute a basis for adownward departure (SORA Guidelines at 5; accord People v Torres, 124 AD3dat 746), the defendant failed to establish the facts in support of that ground by apreponderance of the evidence (see People v Gillotti, 23 NY3d at 861). Onappeal, the defendant quotes excerpts of certain published works and scientific studies insupport of his general position that age is negatively correlated with rates of sex offenderrecidivism. However, these materials were not admitted into evidence or otherwisesubmitted to the Supreme Court at the SORA hearing (cf. Jerome Prince,Richardson on Evidence § 7-311 at 475-477 [Farrell 11th ed 1995]).Accordingly, as the People correctly contend, these materials constitute matter dehors therecord and the defendant may not rely upon them to sustain his evidentiary burden (see People v Fitzpatrick, 120AD3d 565, 565 [2014]; seealso Matter of Philip K. v Thervey B., 57 AD3d 781, 782 [2008]; Matter ofMcAuliffe v Senn, 97 AD2d 745, 746 [1983]). Since the materials submitted by thedefendant in support of his application failed to demonstrate that his age at the time ofthe SORA determination, 42 years old, "resulted in the over-assessment of his risk topublic safety" (People v Wyatt, 89 AD3d at 129), he failed to adduce sufficientevidence to meet his burden of proof in establishing that this "mitigating circumstance[ ]actually exist[ed] in the case at [*3]hand" (People vGillotti, 23 NY3d at 861).
Inasmuch as the mitigating circumstances identified by the defendant either wereadequately taken into account by the SORA Guidelines, or were not proven by apreponderance of the evidence, the Supreme Court lacked the discretion to downwardlydepart from the presumptive risk level (see id. at 861; People v Wyatt, 89AD3d at 128). Accordingly, the Supreme Court properly denied the defendant'sapplication for a downward departure. Mastro, J.P., Chambers, Miller and Hinds-Radix,JJ., concur.