| People v King |
| 2010 NY Slip Op 03199 [72 AD3d 1363] |
| April 22, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v William King,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Garry, J. Appeal from an order of the Supreme Court (Lamont, J.), entered March 26, 2009in Albany County, which classified defendant as a risk level three sex offender and a sexuallyviolent offender pursuant to the Sex Offender Registration Act.
In 1987, defendant was convicted of rape in the first degree (two counts), rape in the seconddegree and rape in the third degree (two counts) stemming from conduct in which he engaged insexual intercourse by forcible compulsion with one victim under the age of 17 and sexualintercourse with another victim less than 14 years of age. He was sentenced to prison terms of12½ to 25 years for the rape in the first degree convictions and 3½ to 7 years for therape in the second degree conviction, with the sentences to run consecutively, and 2 to 4 years inprison for the rape in the third degree convictions, with that sentence to run concurrently with theother sentences. In anticipation of his release from prison, the Board of Examiners of SexOffenders classified defendant as a presumptive risk level three sex offender (135 points) inaccordance with the Sex Offender Registration Act (see Correction Law art 6-C).Following a hearing, Supreme Court adopted the Board's recommendation and classifieddefendant as a risk level three sex offender and a sexually violent offender. Defendant nowappeals.
Defendant contends that a downward departure from a risk level three sex offender status[*2]to a risk level two status is warranted. "[A] downwarddeparture is only warranted where there exist mitigating factors not adequately taken intoaccount by the Board's risk assessment guidelines" (People v Roe, 47 AD3d 1156 [2008], lv denied 10 NY3d707 [2008]; see People v Barody,54 AD3d 1109, 1110 [2008]). "[T]he question of whether any mitigating factors exist towarrant such a reduction is within the sound discretion of the court to decide" (People v Warren, 42 AD3d 593,595 [2007], lv denied 9 NY3d 810 [2007]; accord People v Roe, 47 AD3d at1156). Here, defendant bases his contention on evidence in the record of his rehabilitation whilein prison, including evidence that he has accepted responsibility for his crimes, successfullycompleted a sex offender rehabilitation program and had a favorable prison disciplinary record.As acceptance of responsibility (risk factor 12) and conduct while confined (risk factor 13) areevaluated in the risk assessment guidelines, Supreme Court properly determined that defendant'spost-offense behavior in those areas was not a mitigating factor not taken into account by theguidelines. Further, as the record reveals that Supreme Court considered defendant's otherevidence and rationally determined that a downward departure was not warranted, we cannotconclude that its decision was an abuse of discretion (see People v Callan, 62 AD3d 1218, 1219 [2009]; People vRoe, 47 AD3d at 1156).
Cardona, P.J., Mercure, Spain and Kavanagh, JJ., concur. Ordered that the order is affirmed,without costs.