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

1001
KA 15-00728
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT

                    V                             MEMORANDUM AND ORDER

DAVID O. RIVERA, 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 (Victoria M.
Argento, J.), entered March 19, 2015. 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 ([SORA]
Correction Law § 168 et seq.), defendant contends that County Court
erred in denying his request for a downward departure from his
presumptive risk level because he met his burden of proving the
existence of a mitigating factor to warrant the downward departure,
i.e., he had an exceptional response to treatment. We reject that
contention. While defendant is correct that “[a]n offender’s response
to treatment, if exceptional, can be the basis for a downward
departure” (Sex Offender Registration Act: Risk Assessment Guidelines
and Commentary, at 17 [2006]), we conclude that defendant failed to
meet his burden of proving by a preponderance of the evidence that his
response was exceptional (see People v Butler, 129 AD3d 1534, 1534-
1535, lv denied 26 NY3d 904; People v Pendleton, 112 AD3d 600, 601, lv
denied 22 NY3d 861). In any event, it is well established that “[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” (People v Worrell, 113 AD3d
742, 743 [internal quotation marks omitted]; see People v Smith, 122
AD3d 1325, 1326). Even assuming, arguendo, that defendant established
that his response to treatment was exceptional, we nevertheless
conclude that the court providently exercised its discretion in
                                 -2-                          1001
                                                         KA 15-00728

denying defendant’s request for a downward departure (see Smith, 122
AD3d at 1326).




Entered:   November 10, 2016                   Frances E. Cafarell
                                               Clerk of the Court
