Opinion
12-23-2016
The PEOPLE of the State of New York, Respondent, v. Donald SCHWARTZ, Defendant–Appellant.
Jeremy D. Schwartz, Buffalo, for defendant-appellant. Niagara County District Attorney's Office, Lockport (Laura T. Bittner of Counsel), for respondent.
Appeal from an order of the Niagara County Court (Sara Sheldon, J.), dated November 10, 2015. The order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act.
Jeremy D. Schwartz, Buffalo, for defendant-appellant.
Niagara County District Attorney's Office, Lockport (Laura T. Bittner of Counsel), for respondent.
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. ). County Court determined that defendant was a presumptive level three risk by applying the automatic override for a psychological abnormality “that decreases his ability to control impulsive sexual behavior” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006] ), and then granted him a downward departure to a level two risk. Contrary to defendant's contention, the court's conclusion that the override applies based on his diagnosis of pedophilia is supported by clear and convincing evidence (see People v. Cobb, 141 A.D.3d 1174, 1175, 34 N.Y.S.3d 923 ; People v. Ledbetter, 82 A.D.3d 858, 858, 918 N.Y.S.2d 358, lv. denied 17 N.Y.3d 702, 2011 WL 2236964 ; see generally People v. Andrychuk, 38 A.D.3d 1242, 1243–1244, 831 N.Y.S.2d 795, lv. denied 8 N.Y.3d 816, 839 N.Y.S.2d 455, 870 N.E.2d 696 ). We also reject defendant's contention that the court abused its discretion in declining to grant him a further downward departure to a level one risk (see People v. Busby, 60 A.D.3d 1455, 1456, 875 N.Y.S.2d 420 ; People v. Suarez, 52 A.D.3d 423, 423–424, 862 N.Y.S.2d 34, lv. denied 11 N.Y.3d 710, 868 N.Y.S.2d 602, 897 N.E.2d 1087 ; see generally People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). “The departure to level two sufficiently addressed the mitigating factors cited by defendant” (People v. Billups, 58 A.D.3d 425, 426, 869 N.Y.S.2d 780, lv. denied 12 N.Y.3d 707, 879 N.Y.S.2d 54, 906 N.E.2d 1088 ). It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
WHALEN, P.J., SMITH, PERADOTTO, NEMOYER, and SCUDDER, JJ., concur.