existence of mitigating factors in New York

2026"As the party seeking the downward departure from a presumptive risk classification, defendant was required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors underlying his request that are not adequately taken into consideration by the risk assessment guidelines" ( People v Uhle , 221 AD3d 1199, 1202 [3d Dept 2023] [citations omitted]; see People v Gillotti , 23 NY3d 841, 861 [2014]).

2026To obtain a downward departure, a defendant is required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk [*2]assessment guidelines ( see People v Gillotti , 23 NY3d 841, 861-863 [2014]; People v Pulsifer , 210 AD3d 1210, 1212 [3d Dept 2022], lv denied 39 NY3d 908 [2023]; People v Guilianelle , 206 AD3d 1311 , 1313 [3d Dept 2022]).

2014Notably, the defense “does not negate intent” (People v Cass, 18 NY3d 553, 561 [2012] [internal quotation marks and citation omitted]; accord People v Sepe, 111 AD3d 75 , 86 [2013], appeal dismissed 22 NY3d 1126 [2014]; see People v Moronta, 96 AD3d 418, 419 [2012], lv denied 20 NY3d 987 [2012]) but, rather, “allows a defendant charged with the commission of acts which would otherwise constitute murder to demonstrate the existence of mitigating factors which indicate that, although . . . not free from responsibility for [the] crime, [defendant] ought to be punished less severely” (People v Sep

2014Notably, the defense “does not negate intent” (People v Cass, 18 NY3d 553, 561 [2012] [internal quotation marks and citation omitted]; accord People v Sepe, 111 AD3d 75 , 86 [2013], appeal dismissed 22 NY3d 1126 [2014]; see People v Moronta, 96 AD3d 418, 419 [2012], lv denied 20 NY3d 987 [2012]) but, rather, “allows a defendant charged with the commission of acts which would otherwise constitute murder to demonstrate the existence of mitigating factors which indicate that, although . . . not free from responsibility for [the] crime, [defendant] ought to be punished less severely” (People v Sep

2014Notably, the defense “does not negate intent” (People v Cass, 18 NY3d 553, 561 [2012] [internal quotation marks and citation omitted]; accord People v Sepe, 111 AD3d 75 , 86 [2013], appeal dismissed 22 NY3d 1126 [2014]; see People v Moronta, 96 AD3d 418, 419 [2012], lv denied 20 NY3d 987 [2012]) but, rather, “allows a defendant charged with the commission of acts which would otherwise constitute murder to demonstrate the existence of mitigating factors which indicate that, although . . . not free from responsibility for [the] crime, [defendant] ought to be punished less severely” (People v Sep

2014Notably, the defense “does not negate intent” (People v Cass, 18 NY3d 553, 561 [2012] [internal quotation marks and citation omitted]; accord People v Sepe, 111 AD3d 75 , 86 [2013], appeal dismissed 22 NY3d 1126 [2014]; see People v Moronta, 96 AD3d 418, 419 [2012], lv denied 20 NY3d 987 [2012]) but, rather, “allows a defendant charged with the commission of acts which would otherwise constitute murder to demonstrate the existence of mitigating factors which indicate that, although . . . not free from responsibility for [the] crime, [defendant] ought to be punished less severely” (People v Sep

2019The extreme emotional disturbance defense "allows a defendant charged with the commission of acts which would otherwise constitute murder to demonstrate the existence of mitigating factors which indicate that, although not free from responsibility for the crime, [the] defendant ought to be punished less severely" ( People v Roche , 98 NY2d 70, 75 [2002] [internal quotation marks, brackets and citations omitted]).

2013Instead, the “defense allows a defendant charged with the commission of acts which would otherwise constitute murder to demonstrate the existence of mitigating factors which indicate that, although . . . not free from responsibility for [the] crime, [defendant] ought to be punished less severely” (People v Roche, 98 NY2d at 75 [internal quotation marks omitted], quoting People v Casassa, 49 NY2d 668, 675 [1980], cert denied 449 US 842 [1980]).

2023As the party seeking the downward departure from a presumptive risk classification, defendant was required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors underlying his request that are not adequately taken into consideration by the risk assessment guidelines ( see People v Gillotti , 23 NY3d [*3]at 861; People v Dorvee , 203 AD3d at 1416 ; People v Lane , 201 AD3d 1266, 1267 [3d Dept 2022]).

2022"As the party seeking the downward departure, defendant was required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines" ( People v Washburn , 206 AD3d 1313, 1315 [3d Dept 2022] [internal quotation marks and citations omitted], lv denied ___ NY3d ___ [Nov. 17, 2022]; see People v Lane , 201 AD3d 1266, 1267 [3d Dept 2022]).

2022As for defendant's assertion that counsel should have requested a downward departure, a party seeking a downward departure must demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines ( see People v Kemp , 163 AD3d 1339 , 1341 [2018], lv denied 32 NY3d 919 [2019]; People v Deming , 155 AD3d 1262, 1263 [2017], lv denied 30 NY3d 911 [2018]).

2022In order to obtain a downward departure, however, "[d]efendant was required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines" ( People v Deming , 155 AD3d 1262, 1263 [2017] [internal quotation marks and citation omitted], lv denied 30 NY3d 911 [2018]; see People v Gillotti , 23 NY3d 841 , 861—863 [2014]).

2022In seeking a downward departure, defendant bore the burden of "demonstrat[ing], by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines" ( People v Huether , 205 AD3d 1233, 1234 [3d Dept 2022] [internal quotation [*2]marks and citations omitted]; see People v Holton , 193 AD3d 1212, 1213 [3d Dept 2021]).

2022"As the party seeking the downward departure, defendant was required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines" ( People v Kemp , 163 AD3d 1339 , 1341 [2018] [internal quotation marks, brackets and citations omitted], lv denied 32 NY3d 919 [2019]; accord People v Holton , 193 AD3d 1212, 1213 [2021]; People v Wilson , 167 AD3d 1192 , 1193 [2018]; see People v Mathews , 181 AD3d 1103, 1105 [2020]).

2026To obtain a downward departure, a defendant is required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk [*2]assessment guidelines ( see People v Gillotti , 23 NY3d 841, 861-863 [2014]; People v Pulsifer , 210 AD3d 1210, 1212 [3d Dept 2022], lv denied 39 NY3d 908 [2023]; People v Guilianelle , 206 AD3d 1311 , 1313 [3d Dept 2022]).

2026Given the foregoing, our review of the record supports Supreme Court's conclusion that defendant did not demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines that would warrant a downward departure ( see People v Gillotti , 23 NY3d at 861-863 ; People v Pulsifer , 210 AD3d at 1212 ; People v Guilianelle , 206 AD3d at 1313).

2024Further, we are unpersuaded by defendant's contention that County Court abused its discretion in denying his request for a downward departure, as he failed to meet his burden of establishing by a preponderance of the evidence the existence of mitigating factors which were of a kind or to a degree not adequately taken into account by the RAI ( see People v Gillotti , 23 NY3d 841, 863-864 [2014]; People v Middlemiss , 153 AD3d 1096, 1098 [3d Dept 2017], lv denied 30 NY3d 906 [2017]).

2018As the party seeking the downward departure, "[d]efendant was required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines" ( People v Deming , 155 AD3d 1262, 1263 [2017] [internal quotation marks and citations omitted], lv denied 30 NY3d 911 [2018]; see People v Middlemiss , 153 AD3d 1096, 1098 [2017], lv denied 30 NY3d 906 [2017]).

2024Defendant's participation in sex offender treatment was taken into account as he was not assessed points under risk factor 12 (acceptance of responsibility) and consequently does not constitute a mitigating factor ( see People v Huether , 205 AD3d 1233, 1235 [3d Dept 2022], lv denied 39 NY3d 901 [2022]; People v Dorvee , 203 AD3d 1413, 1415 [3d Dept 2022]).

2022In seeking a downward departure, defendant bore the burden of "demonstrat[ing], by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines" ( People v Huether , 205 AD3d 1233, 1234 [3d Dept 2022] [internal quotation [*2]marks and citations omitted]; see People v Holton , 193 AD3d 1212, 1213 [3d Dept 2021]).

2014As charged to the jury, defendant was required to establish that, at the time he committed the homicide, he acted under the influence of an extreme emotional disturbance for which there was a reasonable explanation or excuse (see Penal Law § 125.25 [1]; People v Roche, 98 NY2d 70, 75-76 [2002]; People v Harris, 95 NY2d 316, 319 [2000]; People v Hartsock, 189 AD2d 991, 992 [1993]).

2014As charged to the jury, defendant was required to establish that, at the time he committed the homicide, he acted under the influence of an extreme emotional disturbance for which there was a reasonable explanation or excuse (see Penal Law § 125.25 [1]; People v Roche, 98 NY2d 70, 75-76 [2002]; People v Harris, 95 NY2d 316, 319 [2000]; People v Hartsock, 189 AD2d 991, 992 [1993]).

2014The affirmative defense of extreme emotional disturbance — which a defendant must establish by a preponderance of the evidence (see Penal Law §§ 25.00 [2]; 125.25 [1] [a]) — permits “a defendant charged with murder in the second degree to demonstrate the existence of mitigating factors which indicate that, although he [or she] is not free from responsibility for his [or her] crime, he [or she] ought to be punished less severely by reducing the crime to manslaughter in the first degree” (People v Hoke, 276 AD2d 903 , 903 [2000], lv denied 96 NY2d 801 [2001]; see People v Gonzalez, 22 NY3d 539,

2014The affirmative defense of extreme emotional disturbance — which a defendant must establish by a preponderance of the evidence (see Penal Law §§ 25.00 [2]; 125.25 [1] [a]) — permits “a defendant charged with murder in the second degree to demonstrate the existence of mitigating factors which indicate that, although he [or she] is not free from responsibility for his [or her] crime, he [or she] ought to be punished less severely by reducing the crime to manslaughter in the first degree” (People v Hoke, 276 AD2d 903 , 903 [2000], lv denied 96 NY2d 801 [2001]; see People v Gonzalez, 22 NY3d 539,

2025Defendant otherwise "failed to establish by a preponderance of the evidence the existence of mitigating factors not adequately taken into account by the guidelines" ( People v Lewis , 156 AD3d 1431, 1432 [4th Dept 2017], lv denied 31 NY3d 904 [2018]; see Wilson , 186 AD3d at 1067; People v Nilsen , 148 AD3d 1688, 1689 [4th Dept 2017], lv denied 29 NY3d 912 [2017]).

2025Defendant otherwise "failed to establish by a preponderance of the evidence the existence of mitigating factors not adequately taken into account by the guidelines" ( People v Lewis , 156 AD3d 1431, 1432 [4th Dept 2017], lv denied 31 NY3d 904 [2018]; see Wilson , 186 AD3d at 1067 ; People v Nilsen , 148 AD3d 1688, 1689 [4th Dept 2017], lv denied 29 NY3d 912 [2017]).

2014Notably, the defense “does not negate intent” (People v Cass, 18 NY3d 553, 561 [2012] [internal quotation marks and citation omitted]; accord People v Sepe, 111 AD3d 75 , 86 [2013], appeal dismissed 22 NY3d 1126 [2014]; see People v Moronta, 96 AD3d 418, 419 [2012], lv denied 20 NY3d 987 [2012]) but, rather, “allows a defendant charged with the commission of acts which would otherwise constitute murder to demonstrate the existence of mitigating factors which indicate that, although . . . not free from responsibility for [the] crime, [defendant] ought to be punished less severely” (People v Sep

2014Notably, the defense “does not negate intent” (People v Cass, 18 NY3d 553, 561 [2012] [internal quotation marks and citation omitted]; accord People v Sepe, 111 AD3d 75 , 86 [2013], appeal dismissed 22 NY3d 1126 [2014]; see People v Moronta, 96 AD3d 418, 419 [2012], lv denied 20 NY3d 987 [2012]) but, rather, “allows a defendant charged with the commission of acts which would otherwise constitute murder to demonstrate the existence of mitigating factors which indicate that, although . . . not free from responsibility for [the] crime, [defendant] ought to be punished less severely” (People v Sep

2026Many of the factors that defendant relies on, including his conduct while incarcerated, his lack of prior sex offenses, his proof of a stable home environment and the restrictions that will be imposed as part of his postrelease supervision, are factors adequately taken care of by the risk assessment guidelines ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 13-18 [2006]). "[T]o the extent that defendant relies on his successful completion of a sex offender treatment program while incarcerated, he failed to demonstrate that his response to such treatment was 'e

2023In seeking a downward departure, a "defendant [is] required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines" ( People v Kemp , 163 AD3d 1339 , 1341 [3d Dept 2018] [internal quotation marks and citations omitted], lv denied 32 NY3d 919 [2019]; see People v Glowinski , 208 AD3d 1392, 1393 [3d Dept 2022]; People v Arroyo , 202 AD3d at 1213).

2024Defendant's participation in sex offender treatment was taken into account as he was not assessed points under risk factor 12 (acceptance of responsibility) and consequently does not constitute a mitigating factor ( see People v Huether , 205 AD3d 1233, 1235 [3d Dept 2022], lv denied 39 NY3d 901 [2022]; People v Dorvee , 203 AD3d 1413, 1415 [3d Dept 2022]).

2023As the party seeking the downward departure from a presumptive risk classification, defendant was required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors underlying his request that are not adequately taken into consideration by the risk assessment guidelines ( see People v Gillotti , 23 NY3d [*3]at 861; People v Dorvee , 203 AD3d at 1416 ; People v Lane , 201 AD3d 1266, 1267 [3d Dept 2022]).

2024Further, we are unpersuaded by defendant's contention that County Court abused its discretion in denying his request for a downward departure, as he failed to meet his burden of establishing by a preponderance of the evidence the existence of mitigating factors which were of a kind or to a degree not adequately taken into account by the RAI ( see People v Gillotti , 23 NY3d 841, 863-864 [2014]; People v Middlemiss , 153 AD3d 1096, 1098 [3d Dept 2017], lv denied 30 NY3d 906 [2017]).

2018As the party seeking the downward departure, "[d]efendant was required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines" ( People v Deming , 155 AD3d 1262, 1263 [2017] [internal quotation marks and citations omitted], lv denied 30 NY3d 911 [2018]; see People v Middlemiss , 153 AD3d 1096, 1098 [2017], lv denied 30 NY3d 906 [2017]).

2026"As the party seeking the downward departure from a presumptive risk classification, defendant was required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors underlying his request that are not adequately taken into consideration by the risk assessment guidelines" ( People v Uhle , 221 AD3d 1199, 1202 [3d Dept 2023] [citations omitted]; see People v Gillotti , 23 NY3d 841, 861 [2014]).

2024"As the party seeking the downward departure from a presumptive risk classification, defendant was required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors underlying his request that are not adequately taken into consideration by the risk assessment guidelines" ( People v Uhle , 221 AD3d 1199, 1202 [3d Dept 2023] [citations omitted]).

2025Defendant otherwise "failed to establish by a preponderance of the evidence the existence of mitigating factors not adequately taken into account by the guidelines" ( People v Lewis , 156 AD3d 1431, 1432 [4th Dept 2017], lv denied 31 NY3d 904 [2018]; see Wilson , 186 AD3d at 1067; People v Nilsen , 148 AD3d 1688, 1689 [4th Dept 2017], lv denied 29 NY3d 912 [2017]).

2025Defendant otherwise "failed to establish by a preponderance of the evidence the existence of mitigating factors not adequately taken into account by the guidelines" ( People v Lewis , 156 AD3d 1431, 1432 [4th Dept 2017], lv denied 31 NY3d 904 [2018]; see Wilson , 186 AD3d at 1067 ; People v Nilsen , 148 AD3d 1688, 1689 [4th Dept 2017], lv denied 29 NY3d 912 [2017]).

2024As to defendant's request for a downward departure, "defendant was required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines" ([*2] People v Washburn , 206 AD3d 1313, 1315 [3d Dept 2022] [internal quotation marks and citations omitted], lv denied 39 NY3d 903 [2022]; see People v Pulsifer , 210 AD3d 1210, 1212 [3d Dept 2022], lv denied 39 NY3d 908 [2023]).

2022"As the party seeking the downward departure, defendant was required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines" ( People v Washburn , 206 AD3d 1313, 1315 [3d Dept 2022] [internal quotation marks and citations omitted], lv denied ___ NY3d ___ [Nov. 17, 2022]; see People v Lane , 201 AD3d 1266, 1267 [3d Dept 2022]).

2024The strict supervision and conditions of defendant's release as a basis for a downward departure were taken into consideration in the RAI, as no points were assessed under risk factor 14 regarding supervision ( see People v Huether , 205 AD3d 1233, 1235 [3d Dept 2022], lv denied 39 NY3d 901 [2022]; People v Green , 201 AD3d 1137, 1139 [3d Dept 2022], lv denied 38 NY3d 906 [2022]).

2022With respect to defendant's request for a downward departure, "defendant was required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines" ( People v Hackel , 185 AD3d at 1119 [internal quotation marks and citations omitted]; see People v Lane , 201 AD3d 1266, 1267 [2022]; People v Green , 201 AD3d 1137, 1139 [2022], lv denied ___ NY3d ___ [Apr. 28, 2022]).

2022With respect to defendant's request for a downward departure, "defendant was required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines" ( People v Hackel , 185 AD3d at 1119 [internal quotation marks and citations omitted]; see People v Lane , 201 AD3d 1266, 1267 [2022]; People v Green , 201 AD3d 1137, 1139 [2022], lv denied ___ NY3d ___ [Apr. 28, 2022]).

2022With respect to defendant's request for a downward departure, "defendant was required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines" ( People v Hackel , 185 AD3d 1118, 1119 [2020] [internal quotation marks and citations omitted]; see People v McKinney , 173 AD3d 1074 , 1075 [2019], lv denied 34 NY3d 906 [2019]).

2022An offender seeking a downward departure from the presumptive risk level classification must "demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines" ( People v Mathews , 181 AD3d 1103, 1105 [2020] [internal quotation marks and citations omitted]; accord People v Holton , 193 AD3d 1212, 1213 [2021]).

2022"As the party seeking the downward departure, defendant was required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines" ( People v Kemp , 163 AD3d 1339 , 1341 [2018] [internal quotation marks, brackets and citations omitted], lv denied 32 NY3d 919 [2019]; accord People v Holton , 193 AD3d 1212, 1213 [2021]; People v Wilson , 167 AD3d 1192 , 1193 [2018]; see People v Mathews , 181 AD3d 1103, 1105 [2020]).

2025Defendant otherwise "failed to establish by a preponderance of the evidence the existence of mitigating factors not adequately taken into account by the guidelines" ( People v Lewis , 156 AD3d 1431, 1432 [4th Dept 2017], lv denied 31 NY3d 904 [2018]; see Wilson , 186 AD3d at 1067; People v Nilsen , 148 AD3d 1688, 1689 [4th Dept 2017], lv denied 29 NY3d 912 [2017]).

2025Defendant otherwise "failed to establish by a preponderance of the evidence the existence of mitigating factors not adequately taken into account by the guidelines" ( People v Lewis , 156 AD3d 1431, 1432 [4th Dept 2017], lv denied 31 NY3d 904 [2018]; see Wilson , 186 AD3d at 1067 ; People v Nilsen , 148 AD3d 1688, 1689 [4th Dept 2017], lv denied 29 NY3d 912 [2017]).

2024Even if such factors are established, "the court then must make a discretionary determination as to whether the overall circumstances warrant a departure to prevent an overassessment of defendant's dangerousness and risk of sexual recidivism" ( People v Hyman , 228 AD3d at 1081 [internal quotation marks, ellipsis and citations omitted]; see People v Jones , 226 AD3d 1265 , 1267 [3d Dept 2024], lv denied ___ NY3d ___ [Oct. 24, 2024]; People v Adams , 216 AD3d 1376 , 1378 [3d Dept 2023], lv denied 40 NY3d 904 [2023]).

2024"In seeking a downward departure, a defendant is required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines" ( People v Adams , 216 AD3d at 1378 [internal quotation marks, brackets and citations omitted]; see People v Smith , 211 AD3d 1127, 1128 [3d Dept 2022]).

2024"In seeking a downward departure, a defendant is required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines" ( People v Adams , 216 AD3d at 1378 [internal quotation marks, brackets and citations omitted]; see People v Smith , 211 AD3d 1127, 1128 [3d Dept 2022]).

2024"As the party seeking the downward departure, defendant was required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines" ( People v Smith , 211 AD3d 1127 , 1128 [3d Dept 2022] [internal quotation marks and citations omitted]; see People v Pulsifer , 210 AD3d 1210 , 1212 [3d Dept 2022], lv denied 39 NY3d 908 [2023]).