Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on April 15, 2026

2025-10892

Colleen D. Duffy, J.P.

Linda Christopher

Barry E. Warhit

Elena Goldberg Velazquez, JJ.

[*1]

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Anthony M. Battisti, J.), dated August 25, 2025, 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 was convicted, upon his plea of guilty, of criminal sexual act in the second degree. After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C), the Supreme Court found that the defendant was a presumptive level two sex offender, denied his application for a downward departure from his presumptive risk level, and designated him a level two sex offender.

A defendant seeking a downward departure from the presumptive risk level 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 otherwise not 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; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]; People v Gillotti, 23 NY3d 841, 861). "If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the defendant's dangerousness and risk of sexual recidivism" (People v Khan, 182 AD3d 613, 614; see People v Gillotti, 23 NY3d at 861).

The defendant's contention that he is entitled to a downward departure because the victim's lack of consent was due only to an inability to consent by virtue of the victim's age is unpreserved for appellate review (see People v Ramirez, 214 AD3d 1008, 1010). In any event, a downward departure is not warranted given, among other things, the age disparity between the then 30-year-old defendant and the then 14-year-old victim (see People v Saul, 220 AD3d 892, 894; People v Ramirez, 214 AD3d at 1010).

Although a defendant's response to treatment may qualify as a ground for a downward departure where the response is exceptional (see Guidelines at 17; People v Wallace, 144 [*2]AD3d 775, 776), here, the defendant failed to prove by a preponderance of the evidence that his response to treatment was exceptional (see People v Cambarmatute, 243 AD3d 930, 931; People v Kumar, 242 AD3d 1231, 1232).

The defendant's remaining contention is without merit.

Accordingly, the Supreme Court properly denied the defendant's application for a downward departure and designated him a level two sex offender.

DUFFY, J.P., CHRISTOPHER, WARHIT and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court