People v. Billinger

Summary

The Appellate Division, Second Department, affirmed an order designating Marvin Billinger a level three sex offender under the Sex Offender Registration Act. The court held that the Supreme Court properly assessed risk-factor points and that Billinger failed to establish grounds for a downward departure based on his response to sex offender treatment.

Holdings

1. The Supreme Court properly assessed the defendant 20 points under risk factor 13.
2. A defendant seeking a downward departure must identify an appropriate mitigating factor not adequately taken into account by the Guidelines and establish the facts supporting that factor by a preponderance of the evidence.
3. A defendant's response to sex-offender treatment may support a downward departure only when the response is exceptional, and the defendant did not prove by a preponderance of the evidence that his response was exceptional.

Questions Presented

1. Whether the Supreme Court properly assessed 20 points under SORA risk factor 13.
2. Whether the defendant established a legally appropriate mitigating factor and the supporting facts necessary for a downward departure from the presumptive level three SORA risk designation.
3. Whether the defendant demonstrated an exceptional response to sex-offender treatment warranting a downward departure.

Disposition

affirmed