Opinion
831 KA 22-00214
02-03-2023
The PEOPLE of the State of New York, Respondent, v. Todd S. PRITCHARD, Defendant-Appellant.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, CURRAN, BANNISTER, AND MONTOUR, 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 ([SORA] Correction Law § 168 et seq. ), defendant contends that County Court abused its discretion in denying his request for a downward departure from his presumptive risk level. We reject that contention. Even assuming, arguendo, that defendant established at the SORA hearing, by a preponderance of the evidence, that the alleged mitigating circumstances existed in his case and that they were, as a matter of law, mitigating circumstances of a kind or to a degree not adequately taken into account by the guidelines (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; People v. Gillotti , 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ; cf. People v. Mann , 177 A.D.3d 1319, 1320, 110 N.Y.S.3d 357 [4th Dept. 2019], lv denied 35 N.Y.3d 902, 2020 WL 2071370 [2020] ), we conclude, upon weighing the mitigating circumstances against the aggravating circumstances, that the court did not abuse its discretion in denying the request for a downward departure. The totality of the circumstances demonstrates that "defendant's presumptive risk level does not represent an over-assessment of his dangerousness and risk of sexual recidivism" ( People v. Burgess , 191 A.D.3d 1256, 1257, 137 N.Y.S.3d 781 [4th Dept. 2021] ; see People v. Butler , 129 A.D.3d 1534, 1535, 11 N.Y.S.3d 757 [4th Dept. 2015], lv denied 26 N.Y.3d 904, 2015 WL 5254753 [2015] ).