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

1156
KA 14-00677
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JONATHAN C. SMITH, DEFENDANT-APPELLANT.


NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW (GREGORY A. KILBURN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DONALD G. O’GEEN, DISTRICT ATTORNEY, WARSAW (MARSHALL A. KELLY OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Wyoming County Court (Mark H. Dadd,
J.), dated July 17, 2013. 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.). We reject defendant’s contention that
County Court erred in denying his request for a downward departure
from his presumptive risk level. A departure from the presumptive
risk level is warranted if there is “an aggravating or mitigating
factor of a kind or to a degree, that is otherwise not adequately
taken into account by the guidelines” (Sex Offender Registration Act:
Risk Assessment Guidelines and Commentary at 4 [2006] [Guidelines]).
“A defendant seeking a downward departure has the initial burden of
‘(1) identifying, as a matter of law, an appropriate mitigating
factor, namely, a factor which tends to establish a lower likelihood
of reoffense or danger to the community and is of a kind, or to a
degree, that is otherwise not adequately taken into account by the
Guidelines; and (2) establishing the facts in support of its existence
by a preponderance of the evidence’ ” (People v Watson, 95 AD3d 978,
979; see People v Gillotti, 23 NY3d 841, 861; People v Worrell, 113
AD3d 742, 742-743). “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” (Worrell, 113 AD3d at 743 [internal quotation marks
omitted]). Although defendant correctly contends that the Guidelines
recognize that “[a]n offender’s response to treatment, if exceptional,
                                 -2-                          1156
                                                         KA 14-00677

can be the basis for a downward departure” (Guidelines, at 17), we
note that the Guidelines are merely permissive. Even assuming,
arguendo, that defendant established facts that his response to
treatment was exceptional so as to warrant a downward departure, we
conclude upon examining all of the relevant circumstances that the
court providently exercised its discretion in denying defendant’s
request for a downward departure (see Worrell, 113 AD3d at 743).




Entered:   November 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
