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

1412
KA 14-01914
PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DERECK M. CATHY, DEFENDANT-APPELLANT.


JAMES S. KERNAN, PUBLIC DEFENDER, LYONS (DAVID M. PARKS OF COUNSEL),
FOR DEFENDANT-APPELLANT.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Wayne County Court (Daniel G.
Barrett, J.), dated October 1, 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: On appeal from an order determining that he is a
level two risk pursuant to the Sex Offender Registration Act ([SORA]
Correction Law § 168 et seq.), defendant contends that County Court
erred in calculating his risk level, and that he was entitled to a
downward departure from his presumptive risk level. We reject those
contentions.

      Contrary to defendant’s contention, the court properly assessed
15 points for defendant’s drug and alcohol use under risk factor 11.
According to the SORA 2006 Risk Assessment Guidelines and Commentary
(Guidelines), that factor “focuses on the offender’s history of
[substance] abuse and the circumstances at the time of the offense”
(id. at 15). “[T]he fact that alcohol was not a factor in the
underlying offense is not dispositive inasmuch as the [G]uidelines
further provide that ‘[a]n offender need not be abusing alcohol or
drugs at the time of the instant offense to receive points in this
category’ ” (People v Faul, 81 AD3d 1246, 1248). In addition,
although we agree with defendant that the court erred in calculating
his total point score, the correct total of 100 points would still
yield a presumptive level two assessment. We have considered
defendant’s further contentions with respect to the court’s point
assessments, and we conclude that they are without merit. Thus, the
court properly concluded that defendant is a presumptive level two
risk.
                                 -2-                          1412
                                                         KA 14-01914

     Furthermore, the court did not err in denying defendant’s request
for a downward departure from that level inasmuch as defendant “failed
to establish by a preponderance of the evidence any ground for a
downward departure from his risk level” (People v Gillotti, 119 AD3d
1390, 1391; see People v Martinez-Guzman, 109 AD3d 462, 463, lv denied
22 NY3d 854). Defendant is correct that “[a] court may choose to
downwardly depart from the presumptive risk assessment level ‘in an
appropriate case and in those instances where (i) the victim’s lack of
consent is due only to inability to consent by virtue of age and (ii)
scoring 25 points [for sexual contact with the victim, risk factor 2]
results in an over-assessment of the offender’s risk to public
safety’ ” (People v Fryer, 101 AD3d 835, 836, lv denied 20 NY3d 859,
quoting Guidelines, at 9). Here, however, based on defendant’s
repeated sexual contact with a person he knew to be less than the age
of consent, resulting in her becoming pregnant, and his lack of
remorse, it cannot be said that the 25 points assessed for sexual
contact with the victim “result[ed] in an over-assessment” of
defendant’s risk to public safety (id.; see People v Sawyer, 78 AD3d
1517, 1518, lv denied 16 NY3d 704).




Entered:   December 31, 2015                   Frances E. Cafarell
                                               Clerk of the Court
