Opinion
No. 134 KA 21-01613
03-17-2023
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. DALE FINSTER, DEFENDANT-APPELLANT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, CURRAN, BANNISTER, AND MONTOUR, JJ.
Appeal from an order of the Ontario County Court (Brian D. Dennis, J.), entered October 14, 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: Defendant appeals from an order designating him a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). Contrary to defendant's contention, County Court did not abuse its discretion in denying defendant's request for a downward departure from the presumptive risk level (see People v Ricks, 124 A.D.3d 1352, 1352 [4th Dept 2015]; see generally People v Howard, 27 N.Y.3d 337, 341 [2016]; People v Gillotti, 23 N.Y.3d 841, 861 [2014]). Defendant preserved his contention for our review with respect to only two of the multiple alleged mitigating factors or circumstances he now asserts (see People v Reber, 145 A.D.3d 1627, 1627-1628 [4th Dept 2016]; People v Uphael, 140 A.D.3d 1143, 1144-1145 [4th Dept 2016], lv denied 28 N.Y.3d 908 [2016]), and we decline to exercise our power to review the unpreserved factors or circumstances as a matter of discretion in the interest of justice (see generally People v Roman, 179 A.D.3d 1455, 1455-1456 [4th Dept 2020], lv denied 35 N.Y.3d 907 [2020]).
With respect to the first preserved factor, defendant's strong family support network is adequately taken into account by the guidelines and thus improperly asserted as a mitigating factor (see generally Gillotti, 23 N.Y.3d at 861; People v Hawthorne, 158 A.D.3d 651, 654 [2d Dept 2018], lv denied 31 N.Y.3d 909 [2018]; People v June, 150 A.D.3d 1701, 1702 [4th Dept 2017]). With respect to the second, although defendant contends that acceptance of responsibility "would have required him to make admissions against his interest" in light of a pending direct appeal from the underlying judgment of conviction, a factor that we have previously determined to be a "mitigating factor[] of a kind or to a degree, not otherwise adequately taken into account by the guidelines" (People v Kearns, 68 A.D.3d 1713, 1714 [4th Dept 2009] [internal quotation marks omitted]), we nevertheless conclude, based upon "the totality of the circumstances," that a downward departure is not warranted (Howard, 27 N.Y.3d at 341).