People v. Forshey

201 A.D.3d 1352

158 N.Y.S.3d 673 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Steven C. FORSHEY, Defendant-Appellant.

1098

KA 20-01595

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: January 28, 2022

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALLYSON KEHL-WIERZBOWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (SUSAN M. HOWARD OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., CENTRA, NEMOYER, AND WINSLOW, JJ.

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 three risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq. ), defendant contends that County Court erred in refusing to grant him a downward departure. That contention is not preserved for our review (see People v. Stack , 195 A.D.3d 1559, 1560, 145 N.Y.S.3d 901 [4th Dept. 2021], lv denied 37 N.Y.3d 915, 2021 WL 5475414 [2021] ; People v. Ortiz , 186 A.D.3d 1087, 1088, 127 N.Y.S.3d 363 [4th Dept. 2020], lv denied 36 N.Y.3d 901, 2020 WL 6878188 [2020] ; People v. Webb , 162 A.D.3d 918, 919, 75 N.Y.S.3d 260 [2d Dept. 2018], lv denied 32 N.Y.3d 904, 84 N.Y.S.3d 858, 109 N.E.3d 1158 [2018], rearg denied 33 N.Y.3d 1053, 103 N.Y.S.3d 26, 126 N.E.3d 1066 [2019] ). In any event, defendant's contention lacks merit because he failed to demonstrate that there exist mitigating circumstances of a kind or to a degree not otherwise taken into account by the SORA guidelines that warrant a downward departure (see People v. Mann , 177 A.D.3d 1319, 1320, 110 N.Y.S.3d 357 [4th Dept. 2019], lv denied 35 N.Y.3d 902, 2020 WL 2071370 [2020] ; Webb , 162 A.D.3d at 919, 75 N.Y.S.3d 260 ). Defendant identifies, as a mitigating factor, his high scores in educational and vocational programs that he participated in while incarcerated. Although defendant is correct that "[a]n offender's response to treatment, if exceptional, can be the basis for a downward departure" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]), defendant did not meet his burden of establishing by a preponderance of the evidence that he had any response, let alone an exceptional response, to treatment (see Stack , 195 A.D.3d at 1560, 145 N.Y.S.3d 901 ; People v. Antonetti , 188 A.D.3d 1630, 1631, 134 N.Y.S.3d 601 [4th Dept. 2020], lv denied 36 N.Y.3d 910, 2021 WL 1217106 [2021] ; People v. Scott , 186 A.D.3d 1052, 1054, 128 N.Y.S.3d 763 [4th Dept. 2020], lv denied 36 N.Y.3d 901, 2020 WL 6878405 [2020] ). Rather, it was undisputed that he refused to participate in the sex offender counseling and treatment program. Defendant's performance in educational and vocational programs was adequately taken into account in assessing his presumptive risk level inasmuch as he was assessed zero points for conduct while confined despite having an extensive history of disciplinary infractions (see People v. Leung , 191 A.D.3d 1023, 1024, 142 N.Y.S.3d 95 [2d Dept. 2021], lv denied 37 N.Y.3d 910, 2021 WL 4189462 [2021] ; People v. Herbert , 186 A.D.3d 1732, 1733, 129 N.Y.S.3d 792 [2d Dept. 2020], lv denied 36 N.Y.3d 905, 2021 WL 96586 [2021] ). Moreover, even if defendant demonstrated an appropriate mitigating factor, we would nevertheless conclude, based upon the totality of the circumstances, that a downward departure is not warranted (see People v. Burgess , 191 A.D.3d 1256, 1257, 137 N.Y.S.3d 781 [4th Dept. 2021] ; Antonetti , 188 A.D.3d at 1632, 134 N.Y.S.3d 601 ; see generally People v. Gillotti , 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ).

In light of our conclusion, we reject defendant's further contention that he received ineffective assistance of counsel based on defense counsel's failure to request a downward departure (see People v. Whiten , 187 A.D.3d 1661, 1662, 132 N.Y.S.3d 503 [4th Dept. 2020] ; People v. Greenfield , 126 A.D.3d 1488, 1489, 6 N.Y.S.3d 379 [4th Dept. 2015], lv denied 26 N.Y.3d 903, 2015 WL 5149744 [2015] ; see generally People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ).