Opinion
2022-00592
01-28-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. STEVEN C. FORSHEY, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALLYSON KEHL-WIERZBOWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT. JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (SUSAN M. HOWARD OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALLYSON KEHL-WIERZBOWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (SUSAN M. HOWARD OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, AND WINSLOW, JJ.
Appeal from an order of the Orleans County Court (Michael M. Mohun, A.J.), entered August 26, 2019. 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 refusing to grant him a downward departure. That contention is not preserved for our review (see People v Stack, 195 A.D.3d 1559, 1560 [4th Dept 2021], lv denied 37 N.Y.3d 915 [2021]; People v Ortiz, 186 A.D.3d 1087, 1088 [4th Dept 2020], lv denied 36 N.Y.3d 901 [2020]; People v Webb, 162 A.D.3d 918, 919 [2d Dept 2018], lv denied 32 N.Y.3d 904 [2018], rearg denied 33 N.Y.3d 1053 [2019]). In any event, defendant's contention lacks merit because he failed to demonstrate that there exist mitigating circumstances of a kind or to a degree not otherwise taken into account by the SORA guidelines that warrant a downward departure (see People v Mann, 177 A.D.3d 1319, 1320 [4th Dept 2019], lv denied 35 N.Y.3d 902 [2020]; Webb, 162 A.D.3d at 919). Defendant identifies, as a mitigating factor, his high scores in educational and vocational programs that he participated in while incarcerated. Although 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]), defendant did not meet his burden of establishing by a preponderance of the evidence that he had any response, let alone an exceptional response, to treatment (see Stack, 195 A.D.3d at 1560; People v Antonetti, 188 A.D.3d 1630, 1631 [4th Dept 2020], lv denied 36 N.Y.3d 910 [2021]; People v Scott, 186 A.D.3d 1052, 1054 [4th Dept 2020], lv denied 36 N.Y.3d 901 [2020]). Rather, it was undisputed that he refused to participate in the sex offender counseling and treatment program. Defendant's performance in educational and vocational programs was adequately taken into account in assessing his presumptive risk level inasmuch as he was assessed zero points for conduct while confined despite having an extensive history of disciplinary infractions (see People v Leung, 191 A.D.3d 1023, 1024 [2d Dept 2021], lv denied 37 N.Y.3d 910 [2021]; People v Herbert, 186 A.D.3d 1732, 1733 [2d Dept 2020], lv denied 36 N.Y.3d 905 [2021]). Moreover, even if defendant demonstrated an appropriate mitigating factor, we would nevertheless conclude, based upon the totality of the circumstances, that a downward departure is not warranted (see People v Burgess, 191 A.D.3d 1256, 1257 [4th Dept 2021]; Antonetti, 188 A.D.3d at 1632; see generally People v Gillotti, 23 N.Y.3d 841, 861 [2014]).
In light of our conclusion, we reject defendant's further contention that he received ineffective assistance of counsel based on defense counsel's failure to request a downward departure (see People v Whiten, 187 A.D.3d 1661, 1662 [4th Dept 2020]; People v Greenfield, 126 A.D.3d 1488, 1489 [4th Dept 2015], lv denied 26 N.Y.3d 903 [2015]; see generally People v Caban, 5 N.Y.3d 143, 152 [2005]).