| People v Bogan |
| 2014 NY Slip Op 02201 [115 AD3d 1359] |
| March 28, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vRequiere Bogan, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from an order of the Monroe County Court (Frank P. Geraci, Jr., J.), enteredSeptember 17, 2012. The order determined that defendant is a level three risk pursuant tothe Sex Offender Registration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: On appeal from an order determining that he is a level three riskpursuant to the Sex Offender Registration Act (Correction Law § 168 etseq.), defendant contends that County Court erred in denying his request for adownward departure to risk level two. We reject that contention. "A departure from thepresumptive risk level is warranted where 'there exists an aggravating or mitigating factorof a kind or to a degree, not otherwise adequately taken into account by the guidelines'(Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4[1997 ed]). There must exist clear and convincing evidence of the existence of specialcircumstance to warrant an upward or downward departure" (People v Guaman, 8 AD3d545, 545 [2004]; seePeople v McDaniel, 27 AD3d 1158, 1159 [2006], lv denied 7 NY3d703 [2006]; People vDouglas, 18 AD3d 967, 968 [2005], lv denied 5 NY3d 710 [2005]).
Here, the reasons proffered by defendant in support of his request for a downwarddeparture—the fact that he participated in various programs offered to him inprison, thus making him a "changed man," and his assertion that he is not a "serialrapist"—were already taken into account by the guidelines, as reflected by thescoring on the risk assessment instrument, and thus may not provide the basis for adownward departure (seePeople v Smith, 108 AD3d 1215, 1216 [2013], lv denied 22 NY3d 856[2013]; People v Kotzen,100 AD3d 1162, 1162-1163 [2012], lv denied 20 NY3d 860 [2013]).Defendant thus "failed to establish his entitlement to a downward departure from thepresumptive risk level inasmuch as he failed to present the requisite clear and convincingevidence of the existence of special circumstances warranting a downward departure"(People v Marks, 31 AD3d1142, 1143 [2006], lv denied 7 NY3d 715 [2006]; see People v Hamelinck, 23AD3d 1060, 1060 [2005]). Present—Centra, J.P., Fahey, Lindley, Sconiersand Whalen, JJ.