People v Dyson

People v Dyson 2015 NY Slip Op 05657 Decided on July 1, 2015 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 July 1, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
THOMAS A. DICKERSON
SHERI S. ROMAN
HECTOR D. LASALLE, JJ.
2014-10682

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

v

Michael A. Dyson, appellant.

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

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Ronnie Jane Lamm of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated October 9, 2014, 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 only warranted 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" (People v Watson, 95 AD3d 978, 979; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). Although response to treatment may qualify as a ground for a downward departure where the response is exceptional (see People v Coleman, 122 AD3d 599, 599; People v Washington, 84 AD3d 910, 911), the defendant failed to prove by a preponderance of the evidence that his response to treatment was exceptional (see People v Torres, 124 AD3d 744, 746; People v Coleman, 122 AD3d at 599-600; People v Tisman, 116 AD3d 1018, 1019; People v Pendleton, 112 AD3d 600, 601).

Accordingly, the County Court properly denied the defendant's request for a downward departure from his presumptive designation as a level two sex offender, and designated him a level two sex offender.

DILLON, J.P., DICKERSON, ROMAN and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court