People v. Clark

Appellate Division of the Supreme Court of New York

People v. Clark

126 A.D.3d 1540, 6 N.Y.S.3d 357

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 27, 2015

StatusPublished

This text of 126 A.D.3d 1540 (People v. Clark) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Clark, 126 A.D.3d 1540, 6 N.Y.S.3d 357 (N.Y. Ct. App. 2015).

Pincite

Opinion

Appeal from an order of the Monroe County Court (John Lewis DeMarco, J.), entered October 3, 2013. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.

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 refusing to grant him a downward departure from his presumptive risk level. “A defendant seeking a downward departure has the initial burden of ‘ . . . identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account’ ” by the risk assessment guidelines (People v Watson, 95 AD3d 978, 979 [2012]). Here, defendant asserted as mitigating factors that the statutory rape of which he was convicted does not usually result in a level three risk assessment and that the risk assessment instrument yielded the minimum amount of points to qualify as a level three risk, and we conclude that those are not “appropriate mitigating factor[s]” (id.; cf. People v Smith, 122 AD3d 1325, 1326 [2014]; People v Martinez-Guzman, 109 AD3d 462, 462 [2013], lv denied 22 NY3d 854 [2013]). With respect to defendant’s contention that a downward departure [1541]*1541was warranted by his success in treatment, we agree 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]). “Even assuming, arguendo, that defendant established facts that his response to treatment was exceptional so as to warrant a downward departure, we conclude upon examining all of the relevant circumstances that the court providently exercised its discretion in denying defendant’s request for a downward departure” (Smith, 122 AD3d at 1326; see People v Worrell, 113 AD3d 742, 743 [2014]).

Present — Smith, J.P., Valentino, Whalen and DeJoseph, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Appeal from an order of the Monroe County Court (John Lewis DeMarco, J.), entered October 3, 2013. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.

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 refusing to grant him a downward departure from his presumptive risk level. “A defendant seeking a downward departure has the initial burden of ‘ . . . identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account’ ” by the risk assessment guidelines (People v Watson, 95 AD3d 978, 979 [2012]). Here, defendant asserted as mitigating factors that the statutory rape of which he was convicted does not usually result in a level three risk assessment and that the risk assessment instrument yielded the minimum amount of points to qualify as a level three risk, and we conclude that those are not “appropriate mitigating factor[s]” (id.; cf. People v Smith, 122 AD3d 1325, 1326 [2014]; People v Martinez-Guzman, 109 AD3d 462, 462 [2013], lv denied 22 NY3d 854 [2013]). With respect to defendant’s contention that a downward departure [1541]*1541was warranted by his success in treatment, we agree 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]). “Even assuming, arguendo, that defendant established facts that his response to treatment was exceptional so as to warrant a downward departure, we conclude upon examining all of the relevant circumstances that the court providently exercised its discretion in denying defendant’s request for a downward departure” (Smith, 122 AD3d at 1326; see People v Worrell, 113 AD3d 742, 743 [2014]).

Present — Smith, J.P., Valentino, Whalen and DeJoseph, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

126 A.D.3d 1540, 6 N.Y.S.3d 357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-clark-nyappdiv-2015.

Opinion

Related

Cite This Page — Counsel Stack