                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 22, 2016                   520975
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

ROBERT C. SCONE,
                    Appellant.
________________________________


Calendar Date:   November 14, 2016

Before:   McCarthy, J.P., Garry, Rose, Mulvey and Aarons, JJ.

                             __________


     John R. Trice, Elmira, for appellant.

      Stephen K. Cornwell Jr., District Attorney, Binghamton
(Stephen D. Ferri of counsel), for respondent.

                             __________


Aarons, J.

      Appeal from an order of the County Court of Broome County
(Cawley, J.), entered March 11, 2015, which classified defendant
as a risk level three sex offender pursuant to the Sex Offender
Registration Act.

      Defendant was convicted upon his guilty plea of two counts
of attempted sexual abuse in the first degree for subjecting two
girls, ages three and four, to sexual contact while babysitting
them in 2005. He was sentenced in 2012 to concurrent prison
terms of 1a to 4 years. Defendant also has a prior felony sex
offense conviction from 1990 for sexual abuse in the first degree
stemming from his abuse of two children, ages seven and 10, for
which he was sentenced to a prison term of 2 to 6 years and
adjudicated a risk level two sex offender. In anticipation of
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his release from prison on the 2012 sentence, the Board of
Examiners of Sex Offenders calculated a total risk factor score
of 85, which fell within the range of a risk level two sex
offender. However, the Board noted that defendant's prior felony
conviction for a sex offense constituted an override,
presumptively classifying him as a risk level three sex offender
(see Sex Offender Registration Act: Risk Assessment Guidelines
and Commentary, at 3-4 [2006]). Following a hearing pursuant to
the Sex Offender Registration Act (see Correction Law art 6–C),
County Court denied defendant's request for a downward departure
and classified him as a risk level three sex offender, with a
designation as a sexually violent and predicate felony offender.
Defendant now appeals.

      We affirm. Defendant argues that County Court should have
granted his request for a downward departure to a risk level two
sex offender based upon the 15-year lapse between his sex crimes
against children, his acceptance of responsibility and his
completion of a sex offender treatment program while in prison.1
While the application of an override for defendant's prior felony
sex offense conviction is not mandatory, it raised the
presumptive risk level to a level three (see People v Williamson,
73 AD3d 1398, 1399 [2010]; People v Mabb, 32 AD3d 1135, 1135
[2006]). It was defendant's burden to establish by a
preponderance of the evidence that a downward modification was
warranted in that mitigating factors exist that were not
adequately taken into account by the risk assessment instrument
(see People v Gillotti, 23 NY3d 841, 861-863 [2014]; People v
Moss, 22 NY3d 1094, 1095 [2014]; People v Mabb, 32 AD3d at 1135).

      Defendant argued that his 1990 conviction was counted under
both risk factor 9 for criminal history and for purposes of the
presumptive override, and that there was a 15-year lapse between
crimes, together warranting a downward modification. We
disagree, as the assignment of 30 points under factor 9 reflected
that defendant had a prior sex crime conviction but did not take
into consideration that it was a felony sex crime (see Sex


     1
        Defendant did not challenge the assessment of points in
the risk assessment instrument.
                              -3-                520975

Offender Registration Act: Risk Assessment Guidelines and
Commentary, Guidelines at factor 9 and Specific Guidelines at 13-
14 [2006]).   We have previously determined that where the prior
felony conviction is for a sex crime, such conviction may be used
as both an override factor and a basis upon which to add 30
points for risk factor 9 on the risk assessment instrument (see
People v Johnson, 46 AD3d 1032, 1033 [2007]; see also People v
Reynolds, 90 AD3d 630, 631 [2011]; People v Barrier, 58 AD3d
1086, 1087 [2009], lvs denied 12 NY3d 707 [2009]). With regard
to the lapse of time between defendant's sex crimes, this is
reflected in the fact that he was not assigned any points under
risk factor 10 for recency of his prior crime (see People v
Montanez, 88 AD3d 1278, 1280 [2011]). We agree with County Court
that this time interval is not a mitigating factor warranting a
downward departure, particularly given the similarities in
defendant's repeated and egregious conduct perpetrated against
young children.

      Further, defendant was not assigned any points for failing
to accept responsibility under risk factor 12, which, contrary to
his claims, adequately reflected his guilty plea and expressions
of remorse (see People v Filkins, 128 AD3d 1231, 1232 [2015], lv
denied 26 NY3d 904 [2015]). His completion of sex offender
treatment in prison was also taken into account in the scoring of
his conduct while confined under risk factor 13, for which no
points were assigned (see People v Kotzen, 100 AD3d 1162, 1163
[2012], lv denied 20 NY3d 860 [2013]). County Court explained
its reasons for denying the requested downward departure and we
find no abuse of discretion in that decision, as defendant failed
to prove the existence of any mitigating factors by a
preponderance of the evidence (see People v Gillotti, 23 NY3d at
861-863; see also People v Howard, 27 NY3d 337, 342-343 [2016];
People v Pace, 121 AD3d 1315, 1316 [2014], lvs denied 24 NY3d 914
[2015]).

     McCarthy, J.P., Garry, Rose and Mulvey, JJ., concur.
                        -4-                  520975

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
