Opinion
2013-03-27
PEOPLE of State of New York, respondent, v. Ruben MARTINEZ, appellant.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Brennan 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. (Michael J. Brennan of counsel), for respondent.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated May 1, 2012, 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.
The defendant contends that the County Court should have departed from the presumptive risk level because he allegedly had an “exceptional response” to treatment while incarcerated. 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, that is 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. Fernandez, 91 A.D.3d 737, 936 N.Y.S.2d 556). A defendant seeking a downward departure 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 A.D.3d 112, 128, 931 N.Y.S.2d 85). While the SORA Guidelines recognize 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. Washington, 84 A.D.3d 910, 911, 923 N.Y.S.2d 151), the defendant failed to prove such a basis. Indeed, other than his own self-serving testimony regarding the treatment programsin which he participated while incarcerated and the effect of such programs upon his character, the defendant offered no proof to support his contention that he had an exceptional response to treatment so as to warrant a downward departure. Accordingly, inasmuch as the defendant failed to satisfy his burden of proving by a preponderance of the evidence facts supporting a departure on this ground, the court lacked the discretion to downwardly depart from the presumptive risk level ( see People v. Peeples, 98 A.D.3d 491, 950 N.Y.S.2d 618;People v. Watson, 95 A.D.3d 978, 944 N.Y.S.2d 584;People v. Wyatt, 89 A.D.3d at 130, 931 N.Y.S.2d 85).