PEOPLE v. RICHMOND (2025)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.).

Contrary to defendant's contention, County Court did not abuse its discretion in denying his request for a downward departure from his presumptive risk level (see People v. Wilson, 186 A.D.3d 1066, 1067, 127 N.Y.S.3d 359 [4th Dept. 2020], lv denied 36 N.Y.3d 902, 2020 WL 6878549 [2020]). Although a defendant's response to treatment, “ ‘if exceptional’ (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]), may constitute a mitigating factor to serve as the basis for a downward departure,” we conclude that, here, defendant “failed to prove by a preponderance of the evidence that his response to treatment was exceptional” (People v. Bernecky, 161 A.D.3d 1540, 1541, 76 N.Y.S.3d 723 [4th Dept. 2018], lv denied 32 N.Y.3d 901, 2018 WL 4135030 [2018]). Defendant otherwise “failed to establish by a preponderance of the evidence the existence of mitigating factors not adequately taken into account by the guidelines” (People v. Lewis, 156 A.D.3d 1431, 1432, 67 N.Y.S.3d 739 [4th Dept. 2017], lv denied 31 N.Y.3d 904, 2018 WL 1957439 [2018]; see Wilson, 186 A.D.3d at 1067, 127 N.Y.S.3d 359; People v. Nilsen, 148 A.D.3d 1688, 1689, 50 N.Y.S.3d 199 [4th Dept. 2017], lv denied 29 N.Y.3d 912, 2017 WL 2468575 [2017]).