BOGAN, REQUIERE, PEOPLE v

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

356 KA 12-01931 PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

REQUIERE BOGAN, 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 September 17, 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 appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that County Court erred in denying his request for a downward departure to risk level two. We reject that contention. “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 to warrant an upward or downward departure” (People v Guaman, 8 AD3d 545, 545; see People v McDaniel, 27 AD3d 1158, 1159, lv denied 7 NY3d 703; People v Douglas, 18 AD3d 967, 968, lv denied 5 NY3d 710).

Here, the reasons proffered by defendant in support of his request for a downward departure — the fact that he participated in various programs offered to him in prison, thus making him a “changed man,” and his assertion that he is not a “serial rapist” — were already taken into account by the guidelines, as reflected by the scoring on the risk assessment instrument, and thus may not provide the basis for a downward departure (see People v Smith, 108 AD3d 1215, 1216, lv denied 22 NY3d 856; People v Kotzen, 100 AD3d 1162, 1162- 1163, lv denied 20 NY3d 860). Defendant thus “failed to establish his

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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: March 28, 2014 Frances E. Cafarell Clerk of the Court