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

737
KA 14-00966
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL BUTLER, 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 Supreme Court, Monroe County (Francis
A. Affronti, J.), entered May 5, 2014. 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
([SORA] Correction Law § 168 et seq.). We reject defendant’s
contention that Supreme Court erred in denying his request for a
downward departure from his presumptive risk level. While defendant
correctly contends 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 prove by a
preponderance of the evidence that his response to treatment was
exceptional” (People v Torres, 124 AD3d 744, 746; see People v
Stewart, 123 AD3d 784, 785, lv denied 24 NY3d 916). We thus further
conclude that “defendant failed to meet his burden of ‘prov[ing] the
existence of the alleged mitigating factor[] . . . by a preponderance
of the evidence’ ” (People v Colon, 124 AD3d 1340, 1340, lv denied 25
NY3d 902, quoting People v Gillotti, 23 NY3d 841, 861).

     In any event, it is well established that “[a] sex offender’s
successful showing by a preponderance of the evidence of facts in
support of an appropriate mitigating factor does not automatically
result in the relief requested, but merely opens the door to the SORA
court’s exercise of its sound discretion upon further examination of
all relevant circumstances” (People v Worrell, 113 AD3d 742, 743
[internal quotation marks omitted]; see People v Smith, 122 AD3d 1325,
                                 -2-                           737
                                                         KA 14-00966

1326). Even assuming, arguendo, that defendant established that his
response to treatment was exceptional, we nevertheless conclude that
the court providently exercised its discretion in denying defendant’s
request for a downward departure (see Smith, 122 AD3d at 1326).




Entered:   June 12, 2015                        Frances E. Cafarell
                                                Clerk of the Court
