People v. Chamorro
Opinion
| People v Chamorro |
| 2025 NY Slip Op 00464 |
| Decided on January 29, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on January 29, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
ANGELA G. IANNACCI, J.P.
LINDA CHRISTOPHER
BARRY E. WARHIT
DONNA-MARIE E. GOLIA, JJ.
2023-08697
v
Estuardo Chamorro, appellant. Patricia Pazner, New York, NY (Anna . Boksenbaum of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (Guy J. Mangano, Jr., J.), entered September 15, 2023, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.
ORDERED that the order is affirmed, without costs or disbursements.
The defendant was convicted, upon his plea of guilty, of course of sexual conduct against a child in the first degree (Penal Law § 130.75[1][a]). After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C), the Supreme Court assessed the defendant a total of 75 points on the risk assessment instrument, denied his application for a downward departure from his presumptive risk level, and designated him a level two sex offender. On appeal, the defendant challenges the denial of his application for a downward departure.
A defendant seeking a downward departure from the presumptive risk level has the initial 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 the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence" (People v Wyatt, 89 AD3d 112, 128; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]; People v Gillotti, 23 NY3d 841, 861). If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the defendant's dangerousness and risk of sexual recidivism (see People v Gillotti, 23 NY3d at 861; People v Champagne, 140 AD3d 719, 720).
Contrary to the defendant's contention, he failed to demonstrate his entitlement to a downward departure. The defendant's acceptance of responsibility and remorse for his actions and lack of a prior criminal record were adequately taken into account by the Guidelines (see People v Morales, 223 AD3d 850, 851; People v Palmer, 217 AD3d 793, 794). The defendant's purported family support upon release was also adequately taken into account by the Guidelines (see People v Jackson, 221 AD3d 737, 738; People v Davis, 217 AD3d 887, 888) and, in any event, did not establish a lower likelihood of reoffense (see People v Moore, 223 AD3d 921, 923; People v Gunter, 217 AD3d 788, 790). Moreover, "[w]hile a sex offender's response to treatment, if exceptional, can [*2]be the basis for a downward departure pursuant to the Guidelines," the defendant failed to establish by a preponderance of the evidence that his response to treatment was exceptional (People v Grunwald, 201 AD3d 825, 826; see People v Zubradt, 224 AD3d 856, 857).
Accordingly, the Supreme Court properly denied the defendant's application for a downward departure from his presumptive risk level and designated the defendant a level two sex offender.
IANNACCI, J.P., CHRISTOPHER, WARHIT and GOLIA, JJ., concur.
ENTER:Darrell M. Joseph
Clerk of the Court
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