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

557
KA 15-00431
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

STEVEN B. LEWIS, DEFENDANT-APPELLANT.


JAMES S. KERNAN, PUBLIC DEFENDER, LYONS (DAVID M. PARKS OF COUNSEL),
FOR DEFENDANT-APPELLANT.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Wayne County Court (Daniel G.
Barrett, J.), dated March 5, 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 reversed on the law without costs and the matter is
remitted to Wayne County Court for further proceedings in accordance
with the following 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.). We agree with
defendant that County Court erred in determining that his
“participation in treatment is adequately taken into account by the
risk assessment instrument” and, thus, cannot constitute “a mitigating
factor which may form the basis for a downward departure” (People v
Migliaccio, 90 AD3d 879, 880; see People v Smith, 122 AD3d 1325, 1326;
Sex Offender Registration Act: Risk Assessment Guidelines and
Commentary, at 17 [2006]). “In view of the [court’s] conclusion that
treatment is adequately taken into account in the risk assessment
instrument, it did not determine whether . . . defendant had
established, by a preponderance of the evidence, that he made an
exceptional response to treatment, and, if so, whether it should
exercise its discretion to grant a downward departure based upon an
examination of all circumstances relevant to the offender’s risk of
reoffense and danger to the community” (Migliaccio, 90 AD3d at 880
[internal quotation marks omitted]). We therefore remit the matter to
County Court to determine those issues (see id.).



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