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People v Hallett, 2018 NY Slip Op 01625 [159 AD3d 840]

March 14, 2018

Appellate Division, Second Department

[*1]

The People of the State of New York, Respondent,

v

Jeffrey Hallett, Appellant.

Paul Skip Laisure, New York, NY (Rebecca J. Gannon of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Anthea H. Bruffee of counsel; Alexander Brennan on the brief), for respondent.

Appeal by the defendant from an order of the Supreme Court, Kings County (Mondo, J.), dated May 29, 2015, 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.

Contrary to the defendant’s contention, he was not entitled to a downward departure from his presumptive risk level. “A court determining a defendant’s risk level under the Sex Offender Registration Act (hereinafter SORA) may not downwardly depart from the presumptive risk level unless the defendant first identifies and proves by a preponderance of the evidence the facts in support of ‘a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines’ ” ( People v Warren , 152 AD3d 551 , 551 [2017], quoting People v Lathan , 129 AD3d 686 , 687 [2015]; see People v Gillotti , 23 NY3d 841 , 861 [2014]; People v Wyatt , 89 AD3d 112 , 128 [2011]; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]).

While a defendant’s response to treatment may qualify as a ground for a downward departure where the response is exceptional ( see People v Washington , 84 AD3d 910 , 911 [2011]), here, the defendant failed to establish by a preponderance of the evidence that his response to treatment was exceptional ( see People v Velasquez , 145 AD3d 924 , 924 [2016]; People v Wallace , 144 AD3d 775 , 776 [2016], lv denied 28 NY3d 914 [2017]; People v Figueroa , 138 AD3d 708 , 709 [2016]). Accordingly, the Supreme Court properly denied his request for a downward departure and designated him a level three sex offender. Rivera, J.P., Cohen, Miller and Barros, JJ., concur..