Opinion
No. 2022-06595
09-25-2024
The People of the State of New York, respondent, v. Oscar Quezada, appellant.
Patricia Pazner, New York, NY (Anna V. Boksenbaum of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Evan A. Esswein of counsel), for respondent.
Patricia Pazner, New York, NY (Anna V. Boksenbaum of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Evan A. Esswein of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., JOSEPH J. MALTESE, LINDA CHRISTOPHER, LAURENCE L. LOVE, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (Heidi C. Cesare, J.), dated June 2, 2022, 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 a plea of guilty, of attempted course of sexual conduct against a child in the first degree (Penal Law §§ 110.00, 130.75[1][b]). In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6-C), the Supreme Court assessed the defendant 95 points on the risk assessment instrument, denied his 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 "(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; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]; People v Gillotti, 23 N.Y.3d 841, 861). "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 Khan, 182 A.D.3d 613, 614; see People v Gillotti, 23 N.Y.3d at 861).
Here, the defendant's satisfactory conduct in prison, his acceptance of responsibility, and his participation in sex offender treatment were adequately taken into account by the Guidelines (see People v Pareja-Hidalgo, 222 A.D.3d 892, 893; People v Zambrano, 215 A.D.3d 989, 989; People v Williams, 204 A.D.3d 710, 711). "'Moreover, although a defendant's response to sex offender treatment may qualify as a ground for a downward departure where the response is exceptional, here, the defendant failed to establish that his response to such treatment was exceptional'" (People v Pareja-Hidalgo, 222 A.D.3d at 893, quoting People v Saunders, 209 A.D.3d 776, 778; see People v Del-Carmen, 186 A.D.3d 878, 879).
Accordingly, the Supreme Court properly denied the defendant's application for a downward departure and designated him a level two sex offender.
BRATHWAITE NELSON, J.P., MALTESE, CHRISTOPHER and LOVE, JJ., concur.