Opinion
07-01-2015
PEOPLE of State of New York, respondent, v. Michael A. DYSON, appellant.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Ronnie Jane Lamm of counsel), for respondent.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Ronnie Jane Lamm of counsel), for respondent.
Opinion Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated October 9, 2014, 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.
In determining a defendant's risk level pursuant to the Sex Offender Registration Act (see Correction Law art. 6–C; hereinafter SORA), “[a] downward departure from a sex offender's presumptive risk level generally is only warranted where there exists a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines” (People v. Watson, 95 A.D.3d 978, 979, 944 N.Y.S.2d 584 ; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] ). Although response to treatment may qualify as a ground for a downward departure where the response is exceptional (see People v. Coleman, 122 A.D.3d 599, 599, 995 N.Y.S.2d 223 ; People v. Washington, 84 A.D.3d 910, 911, 923 N.Y.S.2d 151 ), the defendant failed to prove by a preponderance of the evidence that his response to treatment was exceptional (see People v. Torres, 124 A.D.3d 744, 746, 998 N.Y.S.2d 464 ; People v. Coleman, 122 A.D.3d at 599–600, 995 N.Y.S.2d 223 ; People v. Tisman, 116 A.D.3d 1018, 1019, 984 N.Y.S.2d 604 ; People v. Pendleton, 112 A.D.3d 600, 601, 975 N.Y.S.2d 908 ).
Accordingly, the County Court properly denied the defendant's request for a downward departure from his presumptive designation as a level two sex offender, and designated him a level two sex offender.
DILLON, J.P., DICKERSON, ROMAN and LaSALLE, JJ., concur.