Opinion
No. 831 KA 22-00214
02-03-2023
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. TODD S. PRITCHARD, DEFENDANT-APPELLANT.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, CURRAN, BANNISTER, AND MONTOUR, JJ.
Appeal from an order of the Livingston County Court (Jennifer M. Noto, J.), dated October 29, 2021. The order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.), defendant contends that County Court abused its discretion in denying his request for a downward departure from his presumptive risk level. We reject that contention. Even assuming, arguendo, that defendant established at the SORA hearing, by a preponderance of the evidence, that the alleged mitigating circumstances existed in his case and that they were, as a matter of law, mitigating circumstances of a kind or to a degree not adequately taken into account by the guidelines (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; People v Gillotti, 23 N.Y.3d 841, 861 [2014]; cf. People v Mann, 177 A.D.3d 1319, 1320 [4th Dept 2019], lv denied 35 N.Y.3d 902 [2020]), we conclude, upon weighing the mitigating circumstances against the aggravating circumstances, that the court did not abuse its discretion in denying the request for a downward departure. The totality of the circumstances demonstrates that "defendant's presumptive risk level does not represent an over-assessment of his dangerousness and risk of sexual recidivism" (People v Burgess, 191 A.D.3d 1256, 1257 [4th Dept 2021]; see People v Butler, 129 A.D.3d 1534, 1535 [4th Dept 2015], lv denied 26 N.Y.3d 904 [2015]).