HAYS, JASON L., PEOPLE v

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department [901] KA 11-01261 PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND MARTOCHE, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V MEMORANDUM AND ORDER JASON L. HAYS, DEFENDANT-APPELLANT. WALLACE VAN C. AUSER, III, FULTON, FOR DEFENDANT-APPELLANT. GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (MICHAEL G. CIANFARANO OF COUNSEL), FOR RESPONDENT. Appeal from an order of the Oswego County Court (Walter W. Hafner, Jr., J.), entered May 16, 2011. The order determined, inter alia, that defendant is a level two 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, inter alia, that he is a level two 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 a level one risk. We reject that contention. Although the court may, in the exercise of its discretion, “depart from the presumptive risk level even if the Board [of Examiners of Sex Offenders] does not recommend such a departure” (People v Johnson, 11 NY3d 416, 421 ), a downward departure is warranted only “where ‘there exists . . . [a] mitigating factor of a kind or to a degree, not otherwise adequately taken into account by the guidelines’ ” (People v Hamelinck, 23 AD3d 1060, 1060 ). Defendant must present “clear and convincing evidence of the existence of special circumstances to warrant a[] . . . downward departure” (id. [internal quotation marks omitted]; see People v Vaughn, 26 AD3d 776, 777 ). Contrary to defendant’s contention, he has not established that his participation in a sex offender treatment program entitles him to a downward departure. Although “[a]n offender’s response to [sex offender] treatment, if exceptional, can be the basis for a downward departure” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 17 [2006] [emphasis added]), here defendant failed to demonstrate by clear and convincing evidence that he had an exceptional response to sex offender treatment. Entered: October 5, 2012 Frances E. Cafarell Clerk of the Court