| People v Hays |
| 2012 NY Slip Op 06677 [99 AD3d 1212] |
| October 5, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jason L. Hays,Appellant. |
—[*1] Gregory S. Oakes, District Attorney, Oswego (Michael G. Cianfarano of counsel), forrespondent.
Appeal from an order of the Oswego County Court (Walter W. Hafner, Jr., J.), entered May16, 2011. The order determined, inter alia, 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, inter alia, that he is a level two riskpursuant 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 to alevel one risk. We reject that contention. Although the court may, in the exercise of its discretion,"depart from the presumptive risk level even if the Board [of Examiners of Sex Offenders] doesnot recommend such a departure" (People v Johnson, 11 NY3d 416, 421 [2008]), a downwarddeparture is warranted only " 'where "there exists . . . [a] mitigating factor of a kindor to a degree, not otherwise adequately taken into account by the guidelines" ' " (People v Hamelinck, 23 AD3d1060, 1060 [2005]). Defendant must present "clear and convincing evidence of the existenceof special circumstances to warrant a[ ] . . . downward departure" (id.[internal quotation marks omitted]; seePeople v Vaughn, 26 AD3d 776, 777 [2006]). Contrary to defendant's contention, he hasnot established that his participation in a sex offender treatment program entitles him to adownward departure. Although "[a]n offender's response to [sex offender] treatment,if exceptional, can be the basis for a downward departure" (Sex Offender RegistrationAct: Risk Assessment Guidelines and Commentary at 17 [2006] [emphasis added]), heredefendant failed to demonstrate by clear and convincing evidence that he had an exceptionalresponse to sex offender treatment. Present—Smith, J.P., Peradotto, Carni, Lindleyand Martoche, JJ.