People v. Wester

2021 NY Slip Op 06295

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ROBERT WESTER, DEFENDANT-APPELLANT.

No. 993 KA 19-01446

Supreme Court of New York, Fourth Department

November 12, 2021

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S DAVIS OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., PERADOTTO, TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.

Appeal from an order of the Monroe County Court (Christopher S Ciaccio, J.), entered May 8, 2019. The order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act.

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 because he met his burden of proving the existence of a mitigating factor to warrant the downward departure, i.e., he had an exceptional response to treatment. We reject that contention. While 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]), we conclude that defendant failed to meet his burden of proving by a preponderance of the evidence that his response was exceptional (see People v Antonetti, 188 A.D.3d 1630, 1631 [4th Dept 2020], lv denied 36 N.Y.3d 910 [2021]; People v Rivera, 144 A.D.3d 1595, 1596 [4th Dept 2016], lv denied 28 N.Y.3d 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...