| People v Roe |
| 2008 NY Slip Op 00408 [47 AD3d 1156] |
| January 24, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Michael Roe,Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Spain, J. Appeal from an order of the County Court of Broome County (Smith, J.), enteredFebruary 9, 2007, which classified defendant as a risk level three sex offender pursuant to theSex Offender Registration Act.
In 1994, defendant was convicted of, among other things, sodomy in the first degree andsexual abuse in the first degree, stemming from his impermissible sexual acts against an11-year-old girl. Defendant was thereafter sentenced to a term of imprisonment of 9 to 18 years.Prior to his scheduled release in January 2007, the Board of Examiners of Sex Offendersevaluated and classified defendant as a presumptive risk level three sex offender pursuant to theSex Offender Registration Act (see Correction Law art 6-C). Following a risk assessmenthearing, County Court adopted the Board's recommendation and classified defendant as a risklevel three sex offender. Defendant now appeals.
Defendant contends that a downward departure from a risk level three sex offender status to arisk level two status is warranted, based upon evidence presented that he was being released intoa strong family structure, as well as the steps he has taken regarding drug and alcoholrehabilitation. Such a downward departure is only warranted where there exist mitigating factorsnot adequately taken into account by the Board's risk assessment guidelines (see People vLeeks, [*2]43 AD3d 1251, 1252 [2007]; People v Scott, 35 AD3d 1015,1016 [2006], lv denied 8 NY3d 808 [2007]; People v Mothersell, 26 AD3d 620, 621 [2006]). Furthermore, "thequestion of whether any mitigating factors exist to warrant such a reduction is within the sounddiscretion of [County Court] to decide" (People v Warren, 42 AD3d 593, 595 [2007], lv denied 9NY3d 810 [2007]; see People vMcCormick, 21 AD3d 1221, 1222 [2005]). Here, the record reveals that County Courtconsidered defendant's rehabilitation efforts and family dynamic in making the classification, andrationally concluded that these factors did not warrant a downward departure from thepresumptive risk level three status. Therefore, County Court's conclusion that a downwarddeparture was not warranted did not constitute an abuse of discretion (see People v Mitchell, 41 AD3d1056, 1057 [2007]; People vKaminski, 38 AD3d 1127, 1128 [2007], lv denied 9 NY3d 803 [2007]).
Cardona, P.J., Carpinello, Kane and Malone, JJ., concur. Ordered that the order is affirmed,without costs.