THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. CONNOR POPE DEFENDANT APPELLANT (2024)

MEMORANDUM AND ORDER

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 Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that County Court erred in denying his request for a downward departure from his presumptive risk level. We reject that contention.

Defendant is correct that “a defendant's response to treatment, ‘if exceptional’ ․, may constitute a mitigating factor to serve as the basis for a downward departure” (People v Bernecky, 161 AD3d 1540, 1541 [4th Dept 2018], lv denied 32 NY3d 901 [2018], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]; see People v Wester, 199 AD3d 1404, 1404 [4th Dept 2021], lv denied 38 NY3d 903 [2022]; People v Davis, 170 AD3d 1519, 1520 [4th Dept 2019], lv denied 33 NY3d 907 [2019]). Here, however, we conclude that defendant failed to meet his burden of proving by a preponderance of the evidence that his response to treatment was exceptional (see Wester, 199 AD3d at 1404-1405; People v Rivera, 144 AD3d 1595, 1596 [4th Dept 2016], lv denied 28 NY3d 915 [2017]). Moreover, even assuming, arguendo, that defendant demonstrated that his response to treatment was exceptional, we nevertheless conclude, based upon the totality of the circumstances, that a downward departure is not warranted (see Wester, 199 AD3d at 1405; Rivera, 144 AD3d at 1596; see generally People v Gillotti, 23 NY3d 841, 861 [2014]).

Entered: July 26, 2024

Ann Dillon Flynn

Clerk of the Court