Opinion
05-05-2017
The PEOPLE of the State of New York, Respondent, v. Heath E. JUNE, Defendant–Appellant.
Richard L. Sullivan, Buffalo, for Defendant–Appellant. Gregory S. Oakes, District Attorney, Oswego (Amy L. Hallenbeck of Counsel), for Respondent.
Richard L. Sullivan, Buffalo, for Defendant–Appellant.
Gregory S. Oakes, District Attorney, Oswego (Amy L. Hallenbeck of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, DeJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM:
Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq. ). Contrary to defendant's contention, County Court did not err in assessing 20 points against him under the risk factor for a continuing course of sexual misconduct. " ‘[T]he court was not limited to considering only the crime of which defendant was convicted in making its determination’ " (People v. Davis, 145 A.D.3d 1625, 1626, 44 N.Y.S.3d 837 ). Here, we conclude that the reliable evidence presented at the hearing, including the victim's grand jury testimony and her statement to the police, was "sufficient to establish that defendant engaged in a continuing course of sexual misconduct with that victim" ( People v. Whyte, 89 A.D.3d 1407, 1408, 933 N.Y.S.2d 459 ; see generally People v. Hubel, 70 A.D.3d 1492, 1493, 894 N.Y.S.2d 633 ).
We also reject defendant's further contention that a downward departure from the presumptive risk level was warranted in this case. Although the court may "depart" from the presumptive risk level, "[t]he expectation is that the [risk assessment] instrument will result in the proper classification in most cases so that departures will be the exception—not the rule" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] ). While "[a]n offender's response to treatment, if exceptional, can be the basis for a downward departure" (id. at 17, 894 N.Y.S.2d 633 ), defendant's participation and moderate success in treatment programs does not demonstrate that his response was exceptional (see People v. Pendleton, 112 A.D.3d 600, 601, 975 N.Y.S.2d 908, lv. denied 22 N.Y.3d 861, 2014 WL 593202 ; People v. Watson, 95 A.D.3d 978, 979, 944 N.Y.S.2d 584 ; People v. Parker, 81 A.D.3d 1304, 1304, 916 N.Y.S.2d 557, lv. denied 16 N.Y.3d 713, 2011 WL 1675754 ). Furthermore, defendant's self-serving statements regarding his progress carry little if any weight (see People v. Martinez, 104 A.D.3d 924, 924–925, 962 N.Y.S.2d 336, lv. denied 21 N.Y.3d 857, 2013 WL 2395742 ). We therefore conclude that " ‘defendant failed to prove by a preponderance of the evidence that his response to treatment was exceptional’ " (People v. Butler, 129 A.D.3d 1534, 1535, 11 N.Y.S.3d 757, lv. denied 26 N.Y.3d 904, 2015 WL 5254753 ).
Finally, to the extent that defendant contends that the court should have considered his marriage, new apartment and recent employment in determining whether a downward departure was warranted, we further conclude that "[d]efendant's ‘stable lifestyle’ was already taken into account by the risk assessment instrument" (People v. Cabrera, 91 A.D.3d 479, 480, 937 N.Y.S.2d 14, lv. denied 19 N.Y.3d 801, 2012 WL 1500098 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.