Seymour W. James, Jr., New York, N.Y. (Nancy E. Little of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, N.Y. (Anne Grady and Alex Fumelli of counsel), for respondent.
RUTH C. BALKIN, J.P., L. PRISCILLA HALL, ROBERT J. MILLER, and HECTOR D. LaSALLE, JJ.
Opinion
Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated September 21, 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.
The defendant pleaded guilty in federal court to one count of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), after he was found in possession of 216 still images and 35 video clips depicting the rape and sexual abuse of children between the ages of 1 and 15 years old. After a hearing pursuant to the Sex Offender Registration Act (see Correction Law article 6–C; hereinafter SORA), the Supreme Court determined that the defendant was a presumptive level two sex offender, and it denied the defendant's request for a downward departure from that presumptive risk level. Accordingly, the defendant was designated a level two sex offender. The defendant appeals, and argues that the court should have granted his application for a downward departure to a risk level one.
“Under SORA, a court must follow three analytical steps to determine whether or not to order a [downward] departure from the presumptive risk level” (People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). “At the first step, the court must decide whether the ... mitigating circumstances alleged ... are, as a matter of law, of a kind or to a degree not adequately taken into account by the guidelines” (id. at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see SORA: Risk Assessment Guidelines and Commentary at 4 [2006] ).
“At the second step, the court must decide whether the [defendant] has adduced sufficient evidence to meet [his or her] burden of proof in establishing that the alleged ... mitigating circumstances actually exist in the case at hand” (People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see SORA: Risk Assessment Guidelines and Commentary at 4, 7). “[A] defendant must prove the existence of the mitigating circumstances ... by a ... preponderance of the evidence” (People v. Gillotti, 23 N.Y.3d at 864, 994 N.Y.S.2d 1, 18 N.E.3d 701 ).
“If the party applying for a departure surmounts the first two steps, the law permits a departure, but the court still has discretion to refuse to depart or to grant a departure. Thus, at the third step, the court must exercise its discretion by weighing
the aggravating and mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over- or under-assessment of the defendant's dangerousness and risk of
sexual recidivism” (
id. at 861,
994 N.Y.S.2d 1,
18 N.E.3d 701 ).
Here, the defendant's remorse and acceptance of responsibility were circumstances that were adequately taken into account under the SORA guidelines (see SORA: Risk Assessment Guidelines and Commentary at 15; People v. Torres, 124 A.D.3d 744, 745–746, 998 N.Y.S.2d 464 ). Furthermore, although an offender's age upon release and an offender's exceptional response to treatment may qualify as grounds for a downward departure (see People v. Santiago, 137 A.D.3d 762, 26 N.Y.S.3d 339 ), the defendant failed to establish the facts in support of these grounds by a preponderance of the evidence (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Santiago, 137 A.D.3d 762, 26 N.Y.S.3d 339 ; People v. Pendleton, 112 A.D.3d 600, 601, 975 N.Y.S.2d 908 ; see also People v. Dyson, 130 A.D.3d 600, 600–601, 10 N.Y.S.3d 885 ; People v. Torres, 124 A.D.3d at 746, 998 N.Y.S.2d 464 ; People v. Jackson, 114 A.D.3d 739, 739–740, 980 N.Y.S.2d 152 ; People v. Roldan, 111 A.D.3d 909, 910, 975 N.Y.S.2d 681 ).
Moreover, although in some cases involving offenders who possessed child pornography, the assessment of points under risk factors three and seven may result in an overassessment of a defendant's risk to public safety (see People v. Gillotti, 23 N.Y.3d at 859–860, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Johnson, 11 N.Y.3d 416, 421, 872 N.Y.S.2d 379, 900 N.E.2d 930 ), a downward departure is not warranted under the circumstances of this case. Significantly, the images possessed by the defendant showed that the children depicted in them were subjected to pain and cruelty (cf. People v. Labrake, 121 A.D.3d 1134, 1135–1136, 993 N.Y.S.2d 193 ; People v. Rotunno, 117 A.D.3d 1019, 1019, 986 N.Y.S.2d 344 ). Given, among other things, the number and nature of the images possessed by the defendant, the Supreme Court providently exercised its discretion in denying the defendant's application for a downward departure from the presumptive risk level.