Summary
The Appellate Division, Second Department affirmed an order designating Eduin Cambarmatute a level two sex offender under the Sex Offender Registration Act. The court held that Cambarmatute failed to establish an exceptional response to treatment or another basis warranting a downward departure from the presumptive risk level.
Topics
Practice areas
Questions Presented
- Whether the defendant established an appropriate mitigating factor, and facts supporting that factor by a preponderance of the evidence, sufficient to permit a downward departure from the presumptive risk level under the Sex Offender Registration Act.
- Whether the defendant's response to treatment was exceptional enough to support a downward departure.
- Whether the defendant's disciplinary record while incarcerated supported a downward departure when the Guidelines had not assessed additional points for that conduct.
Holdings
- A defendant seeking a downward departure from a presumptive sex-offender risk level must first identify an appropriate mitigating factor that tends to establish a lower likelihood of reoffense or danger to the community and is not adequately considered by the Guidelines, and must establish the facts supporting that factor by a preponderance of the evidence.
- The defendant did not establish by a preponderance of the evidence that his response to sex-offender and substance-abuse treatment was exceptional; therefore, treatment response did not warrant a downward departure.
- The defendant's disciplinary record while incarcerated was adequately taken into account by the Guidelines because he was not assessed additional points for conduct while confined; the record therefore did not support a downward departure.
Key quotations
“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"” ([*1])
“"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"” ([*1])
Factual background
The defendant was convicted upon his guilty plea of criminal sexual act in the first degree and sexual abuse in the first degree. At a Sex Offender Registration Act hearing, the County Court assessed him 100 points under the risk assessment instrument, resulting in a presumptive level two designation. He sought a downward departure based on his response to sex-offender and substance-abuse treatment and his disciplinary record while incarcerated, but the court denied the request.
Procedural history
After pleading guilty to criminal sexual act in the first degree and sexual abuse in the first degree, the defendant underwent a risk-level hearing under the Sex Offender Registration Act. The County Court assessed 100 points on the risk assessment instrument, designated him a presumptive level two sex offender, denied a downward departure, and entered a level two designation. The Appellate Division affirmed.