People v Reyes, 2020 NY Slip Op 07611 [189 AD3d 1286]
December 16, 2020
Appellate Division, Second Department
[*1]
The People of State of New York, Respondent,
v
Martin Reyes, Appellant.
Janet E. Sabel, New York, NY (Rachel L. Pecker of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Anne Grady of counsel; Esmer Mujaj on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Richmond County (Mario F. Mattei, J.), dated June 15, 2018, 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.
In this proceeding pursuant to the Sex Offender Registration Act ( see Correction Law art 6-C [hereinafter SORA]), the Supreme Court assessed the defendant 110 points, within the range for a presumptive designation as a level three sex offender. The court denied the defendant’s request for a downward departure from his presumptive risk level and designated him a level three sex offender. The defendant challenges the denial of his request 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 AD3d 112 , 128 [2011]; see People v Gillotti , 23 NY3d 841 , 861 [2014]; 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 ( see People v Gillotti , 23 NY3d at 861; People v Champagne , 140 AD3d 719 , 720 [2016]).
An offender’s response to treatment, if exceptional, can form the basis for a downward departure ( see Guidelines at 17; People v Palomeque , 170 AD3d 1055 , 1056 [2019]). Although the defendant submitted evidence that he participated in and completed a sex offenders treatment program, he failed to establish by a preponderance of the evidence that his response to treatment was exceptional ( see People v Jimenez , 178 AD3d 1099 , 1100-1101 [2019]; People v Santos , 174 AD3d 658 , 659 [2019]; People v Palomeque , 170 AD3d at 1056; People v Guzman , 110 AD3d 863 , 863-864 [2013]).
We also agree with the Supreme Court that no downward departure was warranted based on the defendant’s deportation subsequent to the SORA adjudication, as he failed to establish [*2] that his deportation was, “ ’as a matter of law, an appropriate mitigating factor’ ” ( People v Morrison , 156 AD3d 831 , 832 [2017], quoting People v Wyatt , 89 AD3d at 128; see People v Alvarez , 153 AD3d 645 , 646 [2017]; People v Charles , 152 AD3d 721 , 721-722 [2017]; People v Leshchenko , 127 AD3d 833 [2015]).
The defendant’s contention that a departure was warranted because intra-familial sex offenders pose a lower risk of reoffense is without merit ( see People v Palomeque , 170 AD3d at 1055; People v Meaders , 154 AD3d 978 [2017]; People v Ogata , 124 AD3d 416 [2015]).
Accordingly, we agree with the Supreme Court’s determination designating the defendant a level three sex offender. Mastro, J.P., Miller, Duffy and Brathwaite Nelson, JJ., concur..