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

651
KA 15-02093
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HEATH E. JUNE, DEFENDANT-APPELLANT.


RICHARD L. SULLIVAN, BUFFALO, FOR DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Oswego County Court (Donald E. Todd,
J.), dated March 10, 2014. 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: Defendant appeals from an order determining that he
is a level two risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.). Contrary to defendant’s contention,
County Court did not err in assessing 20 points against him under the
risk factor for a continuing course of sexual misconduct. “ ‘[T]he
court was not limited to considering only the crime of which defendant
was convicted in making its determination’ ” (People v Davis, 145 AD3d
1625, 1626). Here, we conclude that the reliable evidence presented
at the hearing, including the victim’s grand jury testimony and her
statement to the police, was “sufficient to establish that defendant
engaged in a continuing course of sexual misconduct with that victim”
(People v Whyte, 89 AD3d 1407, 1408; see generally People v Hubel, 70
AD3d 1492, 1493).

     We also reject defendant’s further contention that a downward
departure from the presumptive risk level was warranted in this case.
Although the court may “depart” from the presumptive risk level,
“[t]he expectation is that the [risk assessment] instrument will
result in the proper classification in most cases so that departures
will be the exception – not the rule” (Sex Offender Registration Act:
Risk Assessment Guidelines and Commentary at 4 [2006]). While “[a]n
offender’s response to treatment, if exceptional, can be the basis for
a downward departure” (id. at 17), defendant’s participation and
moderate success in treatment programs does not demonstrate that his
response was exceptional (see People v Pendleton, 112 AD3d 600, 601,
lv denied 22 NY3d 861; People v Watson, 95 AD3d 978, 979; People v
                                 -2-                           651
                                                         KA 15-02093

Parker, 81 AD3d 1304, 1304, lv denied 16 NY3d 713). Furthermore,
defendant’s self-serving statements regarding his progress carry
little if any weight (see People v Martinez, 104 AD3d 924, 924-925, lv
denied 21 NY3d 857). We therefore conclude that “ ‘defendant failed
to prove by a preponderance of the evidence that his response to
treatment was exceptional’ ” (People v Butler, 129 AD3d 1534, 1535, lv
denied 26 NY3d 904).

     Finally, to the extent that defendant contends that the court
should have considered his marriage, new apartment and recent
employment in determining whether a downward departure was warranted,
we further conclude that “[d]efendant’s ‘stable lifestyle’ was already
taken into account by the risk assessment instrument” (People v
Cabrera, 91 AD3d 479, 480, lv denied 19 NY3d 801).




Entered:   May 5, 2017                          Frances E. Cafarell
                                                Clerk of the Court
