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

357
KA 15-02144
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RYAN S. SMITH, DEFENDANT-APPELLANT.


PATRICIA M. MCGRATH, LOCKPORT, FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., SPECIAL PROSECUTOR, BUFFALO (DAVID A. HERATY
OF COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Niagara County Court (Sara S. Farkas,
J.), dated November 30, 2015. 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
([SORA] Correction Law § 168 et seq.). The evidence presented at the
SORA hearing established that the underlying crimes included a home
invasion-style armed robbery in which defendant and several men
entered the home of an adult female and her two male children, ages 9
and 14. Defendant and the men entered the children’s bedroom, pointed
a gun at them and ordered them to stay put, and then proceeded to
ransack the house while asking the female for information on the
whereabouts of another individual. After the female told them where
the other individual could be found, defendant and the men brought the
children to the basement, bound their hands, arms and eyes with duct
tape, and left the children there alone while they drove with the
female to another residence, found and shot the other individual, and
then absconded with a safe. County Court granted defendant’s request
for a downward departure to a level two risk from the presumptive
level three risk recommended by the Board of Examiners of Sex
Offenders (Board), but the court declined to grant a further departure
to a level one risk. We affirm.

     Contrary to defendant’s contention, the undisputed absence of a
sexual component to his crime was already taken into account in
defendant’s risk assessment instrument in which the Board assessed
zero points under risk factor 2, based on his lack of sexual contact
with the victims (see People v Howard, 27 NY3d 337, 342). Even
assuming, arguendo, that defendant proved the existence of other
                                 -2-                           357
                                                         KA 15-02144

mitigating factors, we conclude that the court did not abuse its
discretion in determining that a further departure was not warranted
under the totality of the circumstances, particularly considering the
egregious nature of the underlying offense (see e.g. id. at 339, 342-
343). Upon our review of the record, we conclude that “ ‘[t]he
departure to level two sufficiently addressed the mitigating factors
cited by defendant’ ” (People v Schwartz, 145 AD3d 1548, 1549).




Entered:   March 24, 2017                      Frances E. Cafarell
                                               Clerk of the Court
