Opinion
737 KA 14-00966
06-12-2015
The PEOPLE of the State of New York, Respondent, v. Michael BUTLER, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, and WHALEN, JJ.
Opinion
MEMORANDUM: Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq. ). We reject defendant's contention that Supreme Court erred in denying his request for a downward departure from his presumptive risk level. While defendant correctly contends 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 [2006] ), we conclude that “defendant failed to prove by a preponderance of the evidence that his response to treatment was exceptional” (People v. Torres, 124 A.D.3d 744, 746, 998 N.Y.S.2d 464 ; see People v. Stewart, 123 A.D.3d 784, 785, 996 N.Y.S.2d 729, lv. denied 24 N.Y.3d 916, 2015 WL 688423 ). We thus further conclude that “ defendant failed to meet his burden of ‘prov[ing] the existence of the alleged mitigating factor [ ] ... by a preponderance of the evidence’ ” (People v. Colon, 124 A.D.3d 1340, 1340, 998 N.Y.S.2d 271, lv. denied 25 N.Y.3d 902, 2015 WL 1471567, quoting People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ).
In any event, it is well established that “[a] sex offender's successful showing by a preponderance of the evidence of facts in support of an appropriate mitigating factor does not automatically result in the relief requested, but merely opens the door to the SORA court's exercise of its sound discretion upon further examination of all relevant circumstances” (People v. Worrell, 113 A.D.3d 742, 743, 978 N.Y.S.2d 882 [internal quotation marks omitted]; see People v. Smith, 122 A.D.3d 1325, 1326, 995 N.Y.S.2d 890 ). Even assuming, arguendo, that defendant established that his response to treatment was exceptional, we nevertheless conclude that the court providently exercised its discretion in denying defendant's request for a downward departure (see Smith, 122 A.D.3d at 1326, 995 N.Y.S.2d 890 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.