Opinion
2013-11-8
The PEOPLE of the State of New York, Respondent, v. Lashawn J. SCOTT, Defendant–Appellant.
Appeal from an order of the Monroe County Court (Frank P. Geraci, Jr., J.), entered July 25, 2012. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act. Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Appeal from an order of the Monroe County Court (Frank P. Geraci, Jr., J.), entered July 25, 2012. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
MEMORANDUM:
On a prior appeal, we reversed an order determining that defendant was a level three risk under the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq.), and we remitted the matter to County Court for further proceedings on the ground that the People had “failed to provide defendant with the requisite 10–day notice that they intended to seek a determination different from that recommended by the Board of Examiners of Sex Offenders” ( People v. Scott, 96 A.D.3d 1430, 1430, 945 N.Y.S.2d 886;see § 168–n [3] ). Defendant now appeals from an order that, following a new hearing, again classified him as a level three risk, and he contends that the court erred in denying his request for a downward departure from his presumptive risk level. We reject that contention.
*814It is well settled that the burden is on the People “to establish defendant's risk level under SORA by clear and convincing evidence” ( People v. Brown, 302 A.D.2d 919, 920, 755 N.Y.S.2d 183;see Correction Law § 168–n [3]; People v. Wroten, 286 A.D.2d 189, 199, 732 N.Y.S.2d 513,lv. denied97 N.Y.2d 610, 740 N.Y.S.2d 694, 767 N.E.2d 151). Once that presumptive risk level is established, however, either the People or the defendant may seek a departure from that presumptive risk level. “A departure from the presumptive risk level is warranted where ‘there exists an aggravating or mitigating factor of a kind or to a degree, not otherwise adequately taken into account by the guidelines' (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [1997 ed] ). There must exist clear and convincing evidence of the existence of special circumstance[s] to warrant an upward or downward departure” ( People v. Guaman, 8 A.D.3d 545, 545, 778 N.Y.S.2d 704;see People v. Perrah, 99 A.D.3d 1257, 1257, 951 N.Y.S.2d 456,lv. denied20 N.Y.3d 854, 2012 WL 6581624;cf. People v. Wyatt, 89 A.D.3d 112, 122–128, 931 N.Y.S.2d 85,lv. denied18 N.Y.3d 803, 2012 WL 43762). In our view, “defendant failed to establish his entitlement to a downward departure from the presumptive risk level inasmuch as he failed to present the requisite clear and convincing evidence of the existence of special circumstances warranting a downward departure” ( People v. Marks, 31 A.D.3d 1142, 1143, 817 N.Y.S.2d 555,lv. denied7 N.Y.3d 715, 826 N.Y.S.2d 181, 859 N.E.2d 921;see People v. Hamelinck, 23 A.D.3d 1060, 1060, 803 N.Y.S.2d 469).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.