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

652
KA 15-00454
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KEVYN MICHAEL KREMBEL, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY 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 (Joanne
M. Winslow, J.), entered February 4, 2015. 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.). Defendant was presumptively a level
two risk based on the risk assessment instrument, but Supreme Court
determined that defendant is a level three risk based on the
presumptive override for a prior felony sex crime conviction. We
reject defendant’s contention that the court erred in failing to grant
a downward departure to a level one risk inasmuch as defendant failed
to establish by a preponderance of the evidence the existence of
mitigating factors not adequately taken into account by the guidelines
(see People v Reber, 145 AD3d 1627, 1627-1628). “In determining
whether to depart from a presumptive risk level, the hearing court
weighs the aggravating or mitigating factors alleged by the
departure-requesting party to assess whether, under the totality of
the circumstances, a departure is warranted” (People v Howard, 27 NY3d
337, 341). Such departures “are ‘the exception, not the rule’ ”
(id.). We conclude that defendant’s mental or physical impairments,
and the absence of past sexual contact with children, do not warrant a
downward departure. Indeed, these factors were present before
defendant committed the crimes underlying this proceeding, but they
did not prevent him from committing those offenses.

     Inasmuch as defendant does not dispute that he was previously
convicted of a felony sex crime, and thus is presumptively a level
                                 -2-                           652
                                                         KA 15-00454

three risk (see People v Edmunds, 133 AD3d 1332, 1332, lv denied 26
NY3d 918), we do not address defendant’s further contention that the
court erred in its initial assessment of points before the application
of the presumptive override.




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