DocketNumber： 2017-01026
Filed Date： 7/25/2018
Status： Precedential
Modified Date： 7/25/2018
| People v Ramirez |
| 2018 NY Slip Op 05504 |
| Decided on July 25, 2018 |
| 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. |
Jillian S. Harrington, Staten Island, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Laurie K. Gibbons and Amanda Manning of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Nassau County (Robert A. McDonald, J.), dated December 22, 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.
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] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence" (People v Wyatt, 89 AD3d 112, 128; see People v Gillotti, 23 NY3d 841, 861; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). 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 Champagne, 140 AD3d 719, 720).
Here, although the Supreme Court erroneously applied a "clear and convincing" standard to the defendant's application for a downward departure, the record is sufficient for this Court to make its own findings of fact and conclusions of law (see People v Brown, 136 AD3d 698, 699; People v Watson, 95 AD3d 978, 979; People v Bowden, 88 AD3d 972, 973). 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). On the record presented, 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; People v Wallace, 144 AD3d 775, 776).
The defendant was not denied the effective assistance of counsel (see People v Butler, 157 AD3d 727; People v Eaton, 105 AD3d 722, 724; People v Bowles, 89 AD3d 171, 179; see also Strickland v Washington, 466 US 668; People v Benevento, 91 NY2d 708, 713-714; People v Baldi, 54 NY2d 137, 147).
Accordingly, the defendant was properly designated a level two sex offender.
RIVERA, J.P., DILLON, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court