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

356
KA 12-01931
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

REQUIERE BOGAN, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Monroe County Court (Frank P. Geraci,
Jr., J.), entered September 17, 2012. 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: On appeal from an order determining that he is a
level three risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.), defendant contends that County Court
erred in denying his request for a downward departure to risk level
two. We reject that contention. “A departure from the presumptive
risk level is warranted where ‘there exists an aggravating or
mitigating factor of a kind or to a degree, not otherwise adequately
taken into account by the guidelines’ (Sex Offender Registration Act:
Risk Assessment Guidelines and Commentary at 4 [1997 ed]). There must
exist clear and convincing evidence of the existence of special
circumstance to warrant an upward or downward departure” (People v
Guaman, 8 AD3d 545, 545; see People v McDaniel, 27 AD3d 1158, 1159, lv
denied 7 NY3d 703; People v Douglas, 18 AD3d 967, 968, lv denied 5
NY3d 710).

     Here, the reasons proffered by defendant in support of his
request for a downward departure — the fact that he participated in
various programs offered to him in prison, thus making him a “changed
man,” and his assertion that he is not a “serial rapist” — were
already taken into account by the guidelines, as reflected by the
scoring on the risk assessment instrument, and thus may not provide
the basis for a downward departure (see People v Smith, 108 AD3d 1215,
1216, lv denied 22 NY3d 856; People v Kotzen, 100 AD3d 1162, 1162-
1163, lv denied 20 NY3d 860). Defendant thus “failed to establish his
                                 -2-                          356
                                                        KA 12-01931

entitlement to a downward departure from the presumptive risk level
inasmuch as he failed to present the requisite clear and convincing
evidence of the existence of special circumstances warranting a
downward departure” (People v Marks, 31 AD3d 1142, 1143, lv denied 7
NY3d 715; see People v Hamelinck, 23 AD3d 1060, 1060).




Entered:   March 28, 2014                      Frances E. Cafarell
                                               Clerk of the Court
