Opinion
No. 113 KA 23-00351
05-03-2024
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. MICHAEL P. FORSYTH, DEFENDANT-APPELLANT.
LEAH R. NOWOTARSKI, PUBLIC DEFENDER, WARSAW (FARES A. RUMI OF COUNSEL), FOR DEFENDANT-APPELLANT. DONALD G. O'GEEN, DISTRICT ATTORNEY, WARSAW (CHELSIE HAMILTON OF COUNSEL), FOR RESPONDENT.
LEAH R. NOWOTARSKI, PUBLIC DEFENDER, WARSAW (FARES A. RUMI OF COUNSEL), FOR DEFENDANT-APPELLANT.
DONALD G. O'GEEN, DISTRICT ATTORNEY, WARSAW (CHELSIE HAMILTON OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., MONTOUR, OGDEN, DELCONTE, AND KEANE, JJ.
Appeal from an order of the Wyoming County Court (Michael M. Mohun, J.), dated February 22, 2023. 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 treating his presumptive level three classification as mandatory. We reject that contention. Based on his prior conviction of a felony sex crime, defendant was subject to an "automatic override[ ], the application of which will result in a presumptive risk assessment of level three" (People v Howard, 27 N.Y.3d 337, 341 [2016]). Here, the court properly applied the automatic override, and properly determined that it created a presumption of, but not mandatory classification as, a level three risk (see People v Edmonds, 133 A.D.3d 1332, 1332-1333 [4th Dept 2015], lv denied 26 N.Y.3d 918 [2016]). Indeed, after recognizing the presumption, the court explicitly considered and rejected defendant's request for a downward departure (cf. People v Douglas, 199 A.D.3d 1330, 1331 [4th Dept 2021]).
Contrary to defendant's further contention, the court did not abuse its discretion in denying his request for a downward departure. Here, each of the mitigating circumstances alleged by defendant was" 'of a kind or to a degree... adequately taken into account by the [risk assessment g]uidelines'" (People v Johnson, 218 A.D.3d 1363, 1364 [4th Dept 2023], quoting People v Gillotti, 23 N.Y.3d 841, 861 [2014]; see People v Jewell, 119 A.D.3d 1446, 1448-1449 [4th Dept 2014], lv denied 24 N.Y.3d 905 [2014]; see generally Howard, 27 N.Y.3d at 342).
In light of our determination, we do not reach defendant's alternative contention that the court erred in its initial assessment of points before the application of the presumptive override (see People v Krembel, 150 A.D.3d 1702, 1703 [4th Dept 2017], lv denied 29 N.Y.3d 916 [2017]).