        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

411
KA 13-01959
PRESENT: SMITH, J.P., VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DARYLL J. CLARK, DEFENDANT-APPELLANT.


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

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


     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). 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; People v Martinez-Guzman, 109 AD3d 462,
462, lv denied 22 NY3d 854). With respect to defendant’s contention
that a downward departure was 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
                                 -2-                           411
                                                         KA 13-01959

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).




Entered:   March 27, 2015                      Frances E. Cafarell
                                               Clerk of the Court
