130 A.D.3d 600
N.Y. App. Div.
2015

The People of the State of New York, Respondent, v Michael A. Dyson, Appellant.

10 N.Y.S.3d 885

The People of the State of New York, Respondent, v Michael A. Dyson, Appellant. [10 NYS3d 885]—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 [2012]; 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 [2014]; People v Washington, 84 AD3d 910, 911 [2011]), 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 [2015]; People v Coleman, 122 AD3d at 599-600; People v Tisman, 116 AD3d 1018, 1019 [2014]; People v Pendleton, 112 AD3d 600, 601 [2013]).

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.