Opinion
2019–03238
08-05-2020
PEOPLE of State of New York, Respondent, v. John RAMOS, Appellant.
Paul Skip Laisure, New York, N.Y. (Benjamin Welikson of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Julian Joiris of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Benjamin Welikson of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Julian Joiris of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., JOHN M. LEVENTHAL, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.
DECISION & ORDER
ORDERED that the order is affirmed, without costs or disbursements.
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 [Sex Offender Registration Act (hereinafter 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 overassessment 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. Johnson, 174 A.D.3d 752, 753, 102 N.Y.S.3d 465 ).
Here, the defendant did not meet his burden of identifying an appropriate mitigating factor and establishing the facts in support thereof (see People v. Wyatt, 89 A.D.3d at 128, 931 N.Y.S.2d 85 ). The nature and date of the defendant's prior criminal convictions and the defendant's conduct while in custody were taken into account when assessing points under the Guidelines, and they therefore were not "appropriate mitigating factor[s]" ( id. ; see Guidelines at 6, 13–14, 16, 24; People v. Johnson, 174 A.D.3d at 753, 102 N.Y.S.3d 465 ). "Although ‘advanced age’ may constitute a basis for a downward departure," the defendant failed to establish by a preponderance of the evidence that his age rendered him less likely to reoffend ( People v. Alvarez, 153 A.D.3d 645, 646, 57 N.Y.S.3d 405, quoting Guidelines at 5). Further, while "[r]ehabilitation on the basis of the totality of the record is a mitigating factor that is not taken into account by the Guidelines" ( People v. Madison, 98 A.D.3d 573, 574, 949 N.Y.S.2d 701 ), the defendant did not prove by a preponderance of the evidence the facts in support of this mitigating factor (see People v. Moultrie, 147 A.D.3d 800, 801, 45 N.Y.S.3d 590 ; cf. People v. Davis, 179 A.D.3d 183, 115 N.Y.S.3d 350 ). The defendant also failed to establish that his response to sex offender treatment was "exceptional" (Guidelines at 17; see People v. Washington, 105 A.D.3d 724, 725, 961 N.Y.S.2d 790 ), and failed to demonstrate how having support from his family established a lower likelihood of reoffense or danger to the community (see People v. Rubino, 178 A.D.3d 1104, 1105, 112 N.Y.S.3d 546 ).
Accordingly, we agree with the Supreme Court's determination denying the defendant's request for a downward departure and designating him a level three sex offender.
CHAMBERS, J.P., LEVENTHAL, BRATHWAITE NELSON and WOOTEN, JJ., concur.