Opinion
2020–01851
11-24-2021
PEOPLE of State of New York, respondent, v. Arthur PRYOR, appellant.
Janet E. Sabel, New York, NY (Denise Fabiano of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Anthea H. Bruffee of counsel; Nicole Hsuan on the brief), for respondent.
Janet E. Sabel, New York, NY (Denise Fabiano of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Anthea H. Bruffee of counsel; Nicole Hsuan on the brief), for respondent.
MARK C. DILLON, J.P., ROBERT J. MILLER, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (Danny K. Chun, J.), dated February 6, 2020, 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 Supreme Court properly denied the defendant's application for a downward departure. 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 A.D.3d 112, 128, 931 N.Y.S.2d 85 ; see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see also SORA: 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 over-assessment of the defendant's dangerousness and risk of sexual recidivism (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Jones, 196 A.D.3d 515, 516, 147 N.Y.S.3d 422 ).
Here, the defendant identified as a mitigating factor his response to sex offender treatment, which may provide a basis for a discretionary downward departure if his response to treatment was "exceptional" (Guidelines at 17; see People v. Ellison, 197 A.D.3d 1258, 1259, 151 N.Y.S.3d 637 ; People v. Jones, 196 A.D.3d at 516, 147 N.Y.S.3d 422 ; People v. Rodriguez, 170 A.D.3d 902, 903, 94 N.Y.S.3d 353 ; People v. Santiago, 137 A.D.3d 762, 764, 26 N.Y.S.3d 339 ). However, the defendant failed to demonstrate by a preponderance of the evidence that his response to treatment was "exceptional" (see People v. Ellison, 197 A.D.3d at 1259, 151 N.Y.S.3d 637 ; People v. Jones, 196 A.D.3d at 516, 147 N.Y.S.3d 422 ; People v. Rodriguez, 170 A.D.3d at 903, 94 N.Y.S.3d 353 ; People v. Santiago, 137 A.D.3d at 764, 26 N.Y.S.3d 339 ; People v. Dyson, 130 A.D.3d 600, 600–601, 10 N.Y.S.3d 885 ).
The additional mitigating factors cited by the defendant in support of his application either were adequately taken into account by the Guidelines (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Young, 186 A.D.3d 1546, 1548, 129 N.Y.S.3d 490 ; People v. Burrowes, 177 A.D.3d 1005, 1007, 113 N.Y.S.3d 264 ), or did not warrant a downward departure (see People v. Burrowes, 177 A.D.3d at 1007, 113 N.Y.S.3d 264 ; People v. Saintilus, 169 A.D.3d 838, 839, 94 N.Y.S.3d 128 ).
Accordingly, the Supreme Court properly denied the defendant's application for a downward departure and designated him a level two sex offender.
DILLON, J.P., MILLER, CONNOLLY, IANNACCI and DOWLING, JJ., concur.