People v. Cook

Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated November 19, 2012, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

Contrary to the defendant’s contention, in determining his risk level under the Sex Offender Registration Act (Correction Law art 6-C [hereinafter SORA]), the Supreme Court did not

A court has the discretion to downwardly depart from the presumptive risk level in a proceeding under SORA (see Correction Law § 168 et seq.; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]), only after the defendant has made a twofold showing. First, the defendant must identify “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 Guidelines,” and second, the defendant must prove by a preponderance of the evidence the facts necessary to support the existence of that mitigating factor (People v Wyatt, 89 AD3d 112 , 128 [2011]; see People v Worrell, 113 AD3d 742 [2014]; People v Martinez-Guzman, 109 AD3d 462 [2013]; People v Washington, 105 AD3d 724 [2013]; People v Lacewell, 103 AD3d 784 , 786 [2013]). In the absence of that twofold showing, the court lacks discretion to downwardly depart from the presumptive risk level (see People v Lacewell, 103 AD3d at 786 ; People v Wyatt, 89 AD3d at 128 ).

Here, the only appropriate mitigating factor that the defendant identified was his assertedly “exceptional” response to sex offender treatment (People v Watson, 95 AD3d 978 , 979 [2012]; see People v Washington, 84 AD3d 910 , 911 [2011]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17). The Supreme Court properly determined that the defendant failed to establish by a preponderance of the evidence that his response to sex offender treatment was “exceptional” (People v Washington, 105 AD3d at 725 ; see People v Wyatt, 89 AD3d at 128 ). Consequently, the court lacked the discretion to downwardly depart from the presumptive risk level (see People v Pendleton, 112 AD3d 600 [2013]; People v Martinez, 104 AD3d 924 [2013]; People v Peeples, 98 AD3d 491 [2012]).

In light of our determination, we need not reach the defendant’s remaining contention. Skelos, J.R, Dillon, Austin and Hinds-Radix, JJ., concur.