Opinion
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.
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.
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.
MEMORANDUM AND ORDER
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, 76 N.Y.S.3d 723 [4th Dept. 2018], lv denied 32 N.Y.3d 901, 2018 WL 4135030 [2018], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]; see People v. Wester, 199 A.D.3d 1404, 1404, 154 N.Y.S.3d 555 [4th Dept. 2021], lv denied 38 N.Y.3d 903, 2022 WL 839562 [2022]; People v. Davis, 170 A.D.3d 1519, 1520, 94 N.Y.S.3d 422 [4th Dept. 2019], lv denied 33 N.Y.3d 907, 2019 WL 2439978 [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, 154 N.Y.S.3d 555; People v. Rivera, 144 A.D.3d 1595, 1596, 40 N.Y.S.3d 687 [4th Dept. 2016], lv denied 28 N.Y.3d 915, 2017 WL 582073 [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, 154 N.Y.S.3d 555; Rivera., 144 A.D.3d at 1596, 40 N.Y.S.2d 687; see generally People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).