Opinion
No. 547 KA 23-01109
07-26-2024
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. CONNOR E. POPE, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KERRY A. CONNER OF COUNSEL), FOR DEFENDANT-APPELLANT. KEVIN T. FINNELL, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KERRY A. CONNER OF COUNSEL), FOR DEFENDANT-APPELLANT.
KEVIN T. FINNELL, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CURRAN, OGDEN, NOWAK, AND DELCONTE, JJ.
Appeal from an order of the Genesee County Court (Melissa Lightcap Cianfrini, J.), dated May 30, 2023. The order determined that respondent 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 (Correction Law § 168 et seq.), defendant contends that County Court erred in denying his request for a downward departure from his presumptive risk level. We reject that contention.
Defendant is correct that "a defendant's response to treatment, 'if exceptional'..., may constitute a mitigating factor to serve as the basis for a downward departure" (People v Bernecky, 161 A.D.3d 1540, 1541 [4th Dept 2018], lv denied 32 N.Y.3d 901 [2018], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]; see People v Wester, 199 A.D.3d 1404, 1404 [4th Dept 2021], lv denied 38 N.Y.3d 903 [2022]; People v Davis, 170 A.D.3d 1519, 1520 [4th Dept 2019], lv denied 33 N.Y.3d 907 [2019]). Here, however, we conclude that defendant failed to meet his burden of proving by a preponderance of the evidence that his response to treatment was exceptional (see Wester, 199 A.D.3d at 1404-1405; People v Rivera, 144 A.D.3d 1595, 1596 [4th Dept 2016], lv denied 28 N.Y.3d 915 [2017]). Moreover, even assuming, arguendo, that defendant demonstrated that his response to treatment was exceptional, we nevertheless conclude, based upon the totality of the circumstances, that a downward departure is not warranted (see Wester, 199 A.D.3d at 1405; Rivera, 144 A.D.3d at 1596; see generally People v Gillotti, 23 N.Y.3d 841, 861 [2014]).