Opinion
No. 2021-02707
05-31-2023
The People of the State of New York, respondent, v. Phillip Payne, appellant.
Patricia Pazner, New York, NY (Patty C. Walton of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Katherine A. Walecka of counsel), for respondent.
Patricia Pazner, New York, NY (Patty C. Walton of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Katherine A. Walecka of counsel), for respondent.
COLLEEN D. DUFFY, J.P.,ANGELA G. IANNACCI,CHERYL E. CHAMBERS,LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (Miriam Cyrulnik, J.), dated April 1, 2021, 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.
The defendant was convicted, upon his plea of guilty, of course of sexual conduct against a child in the first degree. At a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C), the Supreme Court denied the defendant's application for a downward departure from his presumptive risk level and designated him a level two sex offender. The defendant appeals.
"A defendant seeking a downward departure from the presumptive risk level has the initial burden of 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 establishing the facts in support of its existence by a preponderance of the evidence" (People v Cousin, 209 A.D.3d 1047, 1048 [internal quotation marks omitted]; see People v Wyatt, 89 A.D.3d 112, 128; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]). "If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the defendant's dangerousness and risk of sexual recidivism" (People v Cousin, 209 A.D.3d at 1048; see People v Gillotti, 23 N.Y.3d 841, 861).
Here, the defendant failed to establish that a downward departure was warranted. Most of the circumstances cited by the defendant in support of his application for a downward departure were adequately taken into account by the Guidelines (see People v Peoples, 189 A.D.3d 1282, 1283; People v Rocano-Quintuna, 149 A.D.3d 1114, 1115). Moreover, although an exceptional response to treatment may qualify as a mitigating factor that warrants a downward departure, here, the defendant failed to prove by a preponderance of the evidence that his response to such treatment was exceptional (see People v Cousin, 209 A.D.3d at 1048; People v Del-Carmen, 186 A.D.3d 878, 879).
The defendant's remaining contention is without merit.
Accordingly, the Supreme Court properly denied the defendant's application for a downward departure and designated him a level two sex offender pursuant to Correction Law article 6-C.
DUFFY, J.P., IANNACCI, CHAMBERS and CHRISTOPHER, JJ., concur.