People v Pryor, 2021 NY Slip Op 06640 [199 AD3d 1033]
November 24, 2021
Appellate Division, Second Department
[*1]
The 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.
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 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 over-assessment of the defendant’s dangerousness and risk of sexual recidivism ( see People v Gillotti , 23 NY3d at 861; People v Jones , 196 AD3d 515 , 516 [2021]).
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 AD3d 1258 , 1259 [2021]; People v Jones , 196 AD3d at 516; People v Rodriguez , 170 AD3d 902 , 903 [2019]; People v Santiago , 137 AD3d 762 , 764 [2016]). However, the defendant failed to demonstrate by a preponderance of the evidence that his response to treatment was “exceptional” ( see People v Ellison , 197 AD3d at 1259; People v Jones , 196 AD3d at 516; People v Rodriguez , 170 AD3d at 903; People v Santiago , 137 AD3d at 764; People v Dyson , 130 AD3d 600 , 600-601 [2015]).
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 NY3d at 861; People v Young , 186 AD3d 1546 , 1548 [2020]; People v Burrowes , 177 AD3d 1005 , 1007 [2019]), or did not warrant a downward departure ( see People v Burrowes , 177 AD3d at 1007; People v Saintilus , 169 [*2] AD3d 838, 839 [2019]).
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..