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

901
KA 11-01261
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

JASON L. HAYS, DEFENDANT-APPELLANT.


WALLACE VAN C. AUSER, III, FULTON, FOR DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (MICHAEL G. CIANFARANO OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Oswego County Court (Walter W.
Hafner, Jr., J.), entered May 16, 2011. The order determined, inter
alia, 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, inter alia,
that he is a level two 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 a level
one risk. We reject that contention. Although the court may, in the
exercise of its discretion, “depart from the presumptive risk level
even if the Board [of Examiners of Sex Offenders] does not recommend
such a departure” (People v Johnson, 11 NY3d 416, 421), a downward
departure is warranted only “where ‘there exists . . . [a] mitigating
factor of a kind or to a degree, not otherwise adequately taken into
account by the guidelines’ ” (People v Hamelinck, 23 AD3d 1060, 1060).
Defendant must present “clear and convincing evidence of the existence
of special circumstances to warrant a[] . . . downward departure” (id.
[internal quotation marks omitted]; see People v Vaughn, 26 AD3d 776,
777). Contrary to defendant’s contention, he has not established that
his participation in a sex offender treatment program entitles him to
a downward departure. Although “[a]n offender’s response to [sex
offender] treatment, if exceptional, can be the basis for a downward
departure” (Sex Offender Registration Act: Risk Assessment Guidelines
and Commentary, at 17 [2006] [emphasis added]), here defendant failed
to demonstrate by clear and convincing evidence that he had an
exceptional response to sex offender treatment.

Entered:    October 5, 2012                        Frances E. Cafarell
                                                   Clerk of the Court
