| People v Kotzen |
| 2012 NY Slip Op 07731 [100 AD3d 1162] |
| November 15, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Stephen H.Kotzen, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), forrespondent.
Egan Jr., J. Appeal from an order of the County Court of St. Lawrence County (Richards, J.),entered May 31, 2011, which classified defendant as a risk level three sex offender and a sexuallyviolent offender pursuant to the Sex Offender Registration Act.
While he was employed as a State Trooper, defendant was charged with various crimesinvolving inappropriate sexual contact with three young boys over a nearly 10-year period. In2006, in satisfaction of these charges, defendant pleaded guilty to two counts of attemptedcriminal sexual act in the first degree and one count of attempted sodomy in the first degree andwas sentenced to concurrent prison terms of six years followed by five years of postreleasesupervision. In anticipation of defendant's release from prison, the Board of Examiners of SexOffenders recommended that defendant be classified a risk level three sex offender and asexually violent offender pursuant to the Sex Offender Registration Act (see CorrectionLaw art 6-C) based upon its risk assessment instrument. A hearing subsequently was conducted,at the conclusion of which County Court classified defendant as a risk level three sex offenderand a sexually violent offender and denied his request for a downward departure. County Courtentered an order accordingly and defendant now appeals.
Although defendant concedes that the scoring on the risk assessment instrument [*2]presumptively placed him in the category of a risk level three sexoffender, he nonetheless argues that County Court improperly denied his request for a downwarddeparture from the presumptive risk level classification. In this regard, we note that "[a]departure from the presumptive risk level classification is warranted only where 'there exists anaggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately takeninto account by the guidelines' " (Peoplev Barnett, 71 AD3d 1296, 1297 [2010], quoting Sex Offender Registration Act: RiskAssessment Guidelines and Commentary at 4 [2006]; see People v Lesch, 38 AD3d 1129, 1130 [2007], lv denied8 NY3d 816 [2007]). Whether such a factor exists is a matter committed to the court's sounddiscretion (see People v Nichols, 80AD3d 1013, 1014 [2011]) and, further, must be demonstrated by clear and convincingevidence (see People v Barnett, 71 AD3d at 1297).
Here, the mitigating factors cited by defendant include his acceptance of responsibility for hiscrimes—as evidenced by his successful completion of a sex offender treatmentprogram—and his significant educational and rehabilitative efforts while confined, whichhe claims have reduced his likelihood of reoffending. However, these factors already were takeninto account by the guidelines, as evidenced by the scoring on the risk assessment instrument foracceptance of responsibility (risk factor 12) and conduct while confined (risk factor 13).Accordingly, County Court properly exercised its discretion in concluding that a downwarddeparture was not warranted (see People v Nichols, 80 AD3d at 1014; People v King, 72 AD3d 1363,1364 [2010]; People v Roe, 47AD3d 1156, 1156 [2008], lv denied 10 NY3d 707 [2008]). Defendant's remainingarguments in support of the requested departure have been examined and found to be lacking inmerit.
Peters, P.J., Lahtinen, Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed,without costs.