People v. Carini , 156 A.D.3d 829 ( 2017 )

People v Carini (2017 NY Slip Op 08865)

People v Carini

2017 NY Slip Op 08865

Decided on December 20, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 20, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
L. PRISCILLA HALL, J.P.
JEFFREY A. COHEN
BETSY BARROS
LINDA CHRISTOPHER, JJ.

2017-00390

[*1]People of State of New York, respondent,

v

Albert Carini, appellant.

Laurette D. Mulry, Riverhead, NY (Kirk R. Brandt of counsel), for appellant.

Emily Constant, Acting District Attorney, Riverhead, NY (Lauren Tan of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated November 7, 2016, 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 appeals from his designation as a level two sex offender pursuant to the Sex Offender Registration Act (see Correction Law § 168 et seq.; hereinafter SORA), contending that the County Court should have granted his application for a downward departure from his presumptive risk level designation.

While a defendant's response to sex offender treatment may qualify as a ground for a downward departure where the response is "exceptional" (SORA: Risk Assessment Guidelines and Commentary at 17 [2006]), here, the defendant failed to establish by a preponderance of the evidence that his response to treatment was exceptional (People v Velasquez, 145 AD3d 924; People v Wallace, 144 AD3d 775, 776; People v Figueroa, 138 AD3d 708, 709). The defendant failed to identify any other mitigating circumstances that are of a kind or to a degree not adequately taken into account by the SORA guidelines (see People v Gillotti, 23 NY3d 841, 861). Accordingly, the County Court properly denied the defendant's application for a downward departure from his presumptive risk level designation.

HALL, J.P., COHEN, BARROS and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court