Opinion
2012-05592
11-05-2014
People of State of New York, respondent, v. Walter Coleman, appellant.
Seymour W. James, Jr., New York, N.Y. (Denise Fabiano of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel; Michael C. Zebrowski on the brief), for respondent.
L. PRISCILLA HALL
LEONARD B. AUSTIN
JEFFREY A. COHEN, JJ.
Seymour W. James, Jr., New York, N.Y. (Denise Fabiano of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel; Michael C. Zebrowski on the brief), for respondent.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (McKay, J.), dated May 31, 2012, which, after a hearing, designated him a level two sexually violent offender pursuant to Correction Law article 6-C.
ORDERED that the order is affirmed, without costs or disbursements.
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 [Sex Offender Registration Act (hereinafter 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; People v Wortham, 119 AD3d 666).
Here, at the SORA hearing, the defendant requested that the Supreme Court downwardly depart from his presumptive risk level, relying, inter alia, upon his participation in a sex offender treatment program. In this respect, the defendant identified an appropriate mitigating factor that could provide a basis for a discretionary downward departure, as the SORA Risk Assessment Guidelines and Commentary recognizes that "[a]n offender's response to treatment, if exceptional, can be the basis for a downward departure" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]; see People v Tisman, 116 AD3d 1018, 1019; People v Watson, 95 AD3d 978, 979; People v Washington, 84 AD3d 910, 911). However, the defendant failed to establish facts in support of this mitigating factor by a preponderance of the evidence, because he did not establish that his response to treatment was exceptional (see People v Tisman, 116 AD3d at 1019; People v Jackson, 114 AD3d 739, 740; People v Guzman, 110 AD3d 863, 864; People v Washington, 105 AD3d 724, 725; People v Martinez, 104 AD3d 924, 925).
The remaining factors identified by the defendant were either adequately taken into account by the SORA Guidelines (see People v Reede 113 AD3d 663, 664; People v Boykin, 102 AD3d 937, 938), or did not warrant a downward departure from the presumptive risk level (see People v Sheppard, 114 AD3d 405, 406; People v Pittman, 113 AD3d 497; People v Grubbs, 107 AD3d 771, 773; People v Thomas, 105 AD3d 640; People v Harris, 93 AD3d 704, 706). Accordingly, the Supreme Court properly denied the defendant's request for a downward departure from his presumptive designation as a level two sex offender.
RIVERA, J.P., HALL, AUSTIN and COHEN, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court