| People v Sawyer |
| 2010 NY Slip Op 08175 [78 AD3d 1517] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Nicholas Sawyer,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from an order of the Supreme Court, Monroe County (Frank P. Geraci, Jr., A.J.), enteredNovember 7, 2006. The order determined that defendant is a level two risk pursuant to the SexOffender 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 SexOffender Registration Act (Correction Law § 168 et seq.), defendant contends that hewas entitled to a downward departure from his presumptive risk level. We reject that contention. "Adeparture from the presumptive risk level is warranted where 'there exists an aggravating or mitigatingfactor of a kind or to a degree, not otherwise adequately taken into account by . . . [theRisk Assessment Guidelines of the Sex Offender Registration Act].' There must exist clear andconvincing evidence of the existence of special circumstance[s] to warrant an upward or downwarddeparture" (People v Guaman, 8 AD3d545 [2004]). Here, defendant failed to establish his entitlement to a downward departure from thepresumptive risk level. Contrary to defendant's contention, a downward departure is not warranted onthe ground that the minor victims were not strangers. The risk assessment instrument adequatelyaddressed that factor and assessed no points for it (see People v Barnett, 71 AD3d 1296, 1297 [2010]). Finally, defendantcontends that 25 points should not have been assessed for sexual contact with the victims because "thevictim[s'] lack of consent is due only to inability to consent by virtue of age and . . .scoring 25 points in [that] category result[ed] in an over-assessment of [defendant's] risk to publicsafety" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 9 [2006]). Itcannot be said that the 25 points assessed for sexual contact with the victims "result[ed] in anover-assessment" of defendant's risk to public safety (id.), nor did defendant " 'present clearand convincing evidence of special circumstances justifying a downward departure' " (People v Clark, 66 AD3d 1366, 1367[2009], lv denied 13 NY3d 713 [2009]). Present—Martoche, J.P., Lindley, Sconiers,Pine and Gorski, JJ.