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

1025
KA 12-01533
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LASHAWN J. SCOTT, 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 July 25, 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 a prior appeal, we reversed an order determining
that defendant was a level three risk under the Sex Offender
Registration Act ([SORA] Correction Law § 168 et seq.), and we
remitted the matter to County Court for further proceedings on the
ground that the People had “failed to provide defendant with the
requisite 10-day notice that they intended to seek a determination
different from that recommended by the Board of Examiners of Sex
Offenders” (People v Scott, 96 AD3d 1430, 1430; see § 168-n [3]).
Defendant now appeals from an order that, following a new hearing,
again classified him as a level three risk, and he contends that the
court erred in denying his request for a downward departure from his
presumptive risk level. We reject that contention.

     It is well settled that the burden is on the People “to establish
defendant’s risk level under SORA by clear and convincing evidence”
(People v Brown, 302 AD2d 919, 920; see Correction Law § 168-n [3];
People v Wroten, 286 AD2d 189, 199, lv denied 97 NY2d 610). Once that
presumptive risk level is established, however, either the People or
the defendant may seek a departure from that presumptive risk level.
“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[s] to warrant an upward or
                                 -2-                         1025
                                                        KA 12-01533

downward departure” (People v Guaman, 8 AD3d 545, 545; see People v
Perrah, 99 AD3d 1257, 1257, lv denied 20 NY3d 854; cf. People v Wyatt,
89 AD3d 112, 122-128, lv denied 18 NY3d 803). In our view, “defendant
failed to establish his 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:   November 8, 2013                    Frances E. Cafarell
                                               Clerk of the Court
