Opinion
495 KA 19-01651
06-11-2021
The PEOPLE of the State of New York, Respondent, v. Richard G. MAUS, II, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER ( TIMOTHY S. DAVIS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER ( NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER ( TIMOTHY S. DAVIS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER ( NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
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 two risk pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ), defendant contends that County Court erred in failing to grant a downward departure from his presumptive classification as a level two risk based upon certain mitigating circumstances not adequately taken into account by the guidelines, including his college education and consistent employment history. Defendant, however, failed to request a downward departure based on those alleged mitigating circumstances and thus failed to preserve his contention for our review ( see People v. Johnson , 11 N.Y.3d 416, 421-422, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008] ; see generally People v. Puff , 151 A.D.3d 1965, 1966, 57 N.Y.S.3d 864 [4th Dept. 2017], lv denied 30 N.Y.3d 904, 2017 WL 4782708 [2017] ; People v. Ratcliff , 53 A.D.3d 1110, 1110, 862 N.Y.S.2d 686 [4th Dept. 2008], lv denied 11 N.Y.3d 708, 868 N.Y.S.2d 600, 897 N.E.2d 1084 [2008] ). At the hearing, defendant requested a downward departure based on his lack of a criminal history, lack of substance abuse, participation in a treatment program, and acceptance of responsibility for his actions. Inasmuch as those alleged mitigating factors or circumstances are adequately taken into account by the guidelines, they are improperly asserted as mitigating factors ( see People v. Gerros , 175 A.D.3d 1111, 1112, 105 N.Y.S.3d 693 [4th Dept. 2019] ; People v. Reber , 145 A.D.3d 1627, 1627-1628, 43 N.Y.S.3d 925 [4th Dept. 2016], lv denied 29 N.Y.3d 906, 2017 WL 1719220 [2017] ; see generally People v. Gillotti , 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ).