| People v Velasquez |
| 2016 NY Slip Op 08553 |
| Decided on December 21, 2016 |
| 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 December 21, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
L. PRISCILLA HALL, J.P.
SYLVIA O. HINDS-RADIX
JOSEPH J. MALTESE
BETSY BARROS, JJ.
2013-10793
v
Raymond Velasquez, appellant.
Seymour W. James, Jr., New York, NY (Arthur H. Hopkirk of counsel), for appellant.
Eric Gonzalez, Acting 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 (Cyrulnik, J.), dated November 20, 2013, 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.
Contrary to the defendant's contention, he was not entitled to a downward departure from his presumptive risk level. A downward departure from a sex offender's presumptive risk level generally is warranted only where there exists a mitigating factor of a kind or to a degree not otherwise adequately taken into account by the Sex Offender Registration Act (hereinafter SORA) guidelines (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; People v Fryer, 101 AD3d 835, 836). 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 [SORA] 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 People v Gillotti, 23 NY3d 841, 861).
While a defendant's response to treatment may qualify as a ground for a downward departure where the response is exceptional (see People v Washington, 84 AD3d 910, 911), here, the defendant failed to establish by a preponderance of the evidence that his response to treatment was exceptional (see People v Figueroa, 138 AD3d 708; People v Santiago, 137 AD3d 762; People v Game, 131 AD3d 460, 461). In addition, the other factors identified by the defendant were either adequately taken into account by the SORA Guidelines, or did not warrant departure from the presumptive risk level (see People v Game, 131 AD3d at 461).
Accordingly, the Supreme Court properly denied the defendant's request for a downward departure and designated him a level two sex offender.
HALL, J.P., HINDS-RADIX, MALTESE and BARROS, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court