Opinion
544 KA 16–01404
05-03-2019
The PEOPLE of the State of New York, Respondent, v. Clarence WILLIAMS, 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., SMITH, CARNI, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order classifying him as a level three risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq. ). Although defendant was presumptively a level two risk based on the risk assessment instrument prepared by the Board of Examiners of Sex Offenders, County Court granted the People's request to assess points for two additional risk factors, making defendant a presumptive level three risk. The court denied defendant's request for a downward departure. We reject defendant's contention that the court erred in failing to grant a downward departure to a level one risk based on his poor physical health. Although a defendant's current medical condition may under certain circumstances constitute a basis for a downward departure (see generally People v. Stevens, 55 A.D.3d 892, 893–894, 867 N.Y.S.2d 108 [2d Dept. 2008] ), here defendant failed to demonstrate by a preponderance of the evidence that his alleged medical impairments at the time of the SORA determination would reduce the risk of his own recidivism or the danger he poses to the community (see People v. Rocano–Quintuna, 149 A.D.3d 1114, 1114–1115, 53 N.Y.S.3d 170 [2d Dept. 2017], lv denied 29 N.Y.3d 916, 2017 WL 3908333 [2017] ; People v. Loughlin, 145 A.D.3d 1426, 1428, 44 N.Y.S.3d 821 [4th Dept. 2016], lv denied 29 N.Y.3d 906, 2017 WL 1719017 [2017] ; see generally People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ).