People v Figueroa

People v Figueroa 2016 NY Slip Op 02631 Decided on April 6, 2016 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 April 6, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
SHERI S. ROMAN
JEFFREY A. COHEN
SYLVIA O. HINDS-RADIX, JJ.
2015-08647

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

v

Oscar Remberto Figueroa, appellant.

Robert C. Mitchell, Riverhead, NY (James H. Miller III of counsel), for appellant.

Thomas J. Spota, 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 July 22, 2015, 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.

In determining a defendant's risk level pursuant to the Sex Offender Registration Act (see Correction Law art 6-C; hereinafter SORA), a downward departure from a sex offender's presumptive risk level generally is warranted only where there exists a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines (see People v Gillotti, 23 NY3d 841, 861; People v Vegh, 134 AD3d 1084; People v Watson, 95 AD3d 978, 979; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006]). Here, in support of his application for a downward departure, the defendant relied upon his completion of a sex offender treatment program and an alcohol treatment program. However, 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), the defendant failed to establish by a preponderance of the evidence that his response to treatment was exceptional (see People v Pendleton, 112 AD3d 600, 601; People v Perez, 104 AD3d 746, 746-747).

The defendant's contention that certain other factors warrant a downward departure is unpreserved for appellate review, as he did not raise these grounds at the SORA hearing (see People v Fernandez, 91 AD3d 737, 738; People v Spring, 83 AD3d 1028). In any event, the defendant's contention is without merit.

Accordingly, the County Court properly denied the defendant's application for a downward departure to risk level one and designated him a level two sex offender.

BALKIN, J.P., ROMAN, COHEN and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court