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

715
KA 14-02132
PRESENT: WHALEN, P.J., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

NICHOLAS J. LOUGHLIN, 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 (James J.
Piampiano, J.), entered November 18, 2013. 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: Defendant appeals from an order determining that he
is a level three risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.). Inasmuch as defendant’s counsel
agreed at the hearing that it was within County Court’s discretion to
consider, under risk factor 9, defendant’s prior person in need of
supervision (PINS) adjudication involving a sexual offense, defendant
waived his present challenge to the court’s application of that prior
adjudication in determining defendant’s risk level on the ground that
it is a PINS adjudication (see generally People v Dominguez, 257 AD2d
511, 512, lv denied 93 NY2d 872). We reject defendant’s further
contention that the court erred in considering the PINS adjudication
because defendant was only 10 years old at the time he committed the
sexual offense. The record reflects that the court properly
considered defendant’s age at the time of the offense under risk
factor 8, “Age at First Sex Crime.” According to the risk assessment
guidelines, “[t]he offender’s age at the commission of his first sex
crime . . . is a factor associated with recidivism: those who offend
at a young age are more prone to reoffend” (Sex Offender Registration
Act: Risk Assessment Guidelines and Commentary, at 13 [2006]).

     Defendant also contends that the court improperly assessed 15
points against him under risk factor 12, “Acceptance of
Responsibility,” based upon his alleged refusal to participate in sex
offender treatment. We agree. Here, the case summary establishes
                                 -2-                           715
                                                         KA 14-02132

that defendant was “removed” from his sex offender treatment program
based on disciplinary violations, which under the risk assessment
guidelines is “not tantamount to a refusal to participate in
treatment” (People v Ford, 25 NY3d 939, 941; cf. People v Jackson, 134
AD3d 1580, 1581). However, even without those 15 points, defendant
remains a level three risk (see generally People v Laraby, 32 AD3d
1130, 1131).

     Finally, although defendant is correct that the court should have
applied a preponderance of the evidence standard to his request for a
downward departure from his presumptive risk level rather than a clear
and convincing evidence standard (see People v Gillotti, 23 NY3d 841,
860-861), remittal is not required because the record is sufficient to
enable us to determine under the proper standard whether the court
erred in denying defendant’s request (see People v Merkley, 125 AD3d
1479, 1479). We conclude that the court properly determined that
defendant’s alleged mitigating factor was not otherwise accounted for
in the risk assessment guidelines (see generally People v Watson, 95
AD3d 978, 979), but defendant failed to meet his burden of
demonstrating by a preponderance of the evidence how that alleged
mitigating factor would tend to reduce the risk of his own recidivism
or danger to the community (see generally People v Johnson, 120 AD3d
1542, 1542, lv denied 24 NY3d 910). Thus, the court lacked discretion
to depart from the presumptive risk level (see id.).




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
