People v. Washington

105 A.D.3d 724, 961 N.Y.S.2d 790

Opinion

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated June 23, 2011, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

A court has the discretion to downwardly depart from the presumptive risk level in a proceeding under the Sex Offender Registration Act (see Correction Law § 168 et seq.; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006]), only after the defendant has made a twofold showing. First, the defendant must identify “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” (People v Wyatt, 89 AD3d 112, 128 [2011]; see People v Madison, 98 AD3d 573, 574 [2012]; People v Martin, 90 AD3d 728, 728 [2011]; People v Peeples, 98 AD3d 491, 491-492 [2012]). Second, the defendant must prove by a preponderance of the evidence the facts necessary to support that mitigating factor (see People v Wyatt, 89 AD3d at 128). In the absence of that twofold showing, the court lacks discretion to downwardly depart from the presumptive risk level (see People v Martin, 90 AD3d at 728-729; People v Wyatt, 89 AD3d at 128).

Upon remittal after the first appeal in this case (see People v Washington, 84 AD3d 910 [2011]), the County Court properly determined that the defendant had failed to establish by a preponderance of the evidence that his response to treatment was “exceptional” (id. at 911; see People v Wyatt, 89 AD3d at 127-128; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]). Consequently, the court properly denied the defendant’s application for a downward departure (see People v Martinez, 104 AD3d 924 [2013]; People v Peeples, 98 AD3d at 491-492).

Balkin, J.E, Leventhal, Roman and Hinds-Radix, JJ., concur.