People v Roldan

People v Roldan 2013 NY Slip Op 07950 Decided on November 27, 2013 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 November 27, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
JOHN M. LEVENTHAL
LEONARD B. AUSTIN
SANDRA L. SGROI, JJ.
2012-04106

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

v

Andre Roldan, appellant.




Lynn W. L. Fahey, New York, N.Y. (William Kastin of counsel;
Mary Wang on the brief), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard
Joblove and Morgan J. Dennehy of
counsel; Esther Traydman on the
brief), for respondent.


DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Foley J.), dated April 17, 2012, 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.

One of the defendant's contentions on appeal is that he was entitled to a downward departure from the presumptive risk level because he allegedly had an "exceptional response" to treatment while incarcerated. A defendant seeking a downward departure 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 not otherwise adequately taken into account by the Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence" (People v Wyatt, 89 AD3d 112, 128). The Sex Offender Registration Act Risk Assessment Guidelines and Commentary recognize that "[a]n offender's response to treatment, if exceptional, can be the basis for a downward departure" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]; see People v Washington, 84 AD3d 910, 911). Here, however, the defendant's evidence did not prove that he had an exceptional response to treatment (see People v Perez, 104 AD3d 746, 747; People v Hays, 99 AD3d 1212, 1213; People v Peeples, 98 AD3d 491, 492; People v Watson, 95 AD3d 978, 979).

The defendant's remaining contentions regarding his request for a downward departure are without merit. Accordingly, he was not entitled to a downward departure from the presumptive risk level (see People v Peeples, 98 AD3d at 492; People v Watson, 95 AD3d at 979; People v Wyatt, 89 AD3d at 131).
MASTRO, J.P., LEVENTHAL, AUSTIN and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court