The Second Department noted that while an offender’s response to treatment can be a mitigating factor supporting a downward departure in a SORA proceeding, there was insufficient evidence of an exceptional response to treatment in this case:
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 Sex Offender Registration Act (hereinafter SORA) Guidelines … . A defendant seeking a downward departure 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” … .
Here, the defendant identified an appropriate mitigating factor that could provide a basis for a discretionary downward departure (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 … .). In this regard, the SORA Guidelines recognize that “[a]n offender’s response to treatment, if exceptional, can be the basis for a downward departure” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 …). However, the defendant failed to establish, by a preponderance of the evidence, the facts in support of its existence… . People v Guzman, 2013 NY Slip Op 06671, 2nd Dept 10-16-13