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People v. June

150 A.D.3d 1701 Court N.Y. App. Div. Decision date 2017-05-05 English

Judges Present—Smith, J.P., Peradotto, DeJoseph, NeMoyer and Curran, JJ.

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p. 1701
The People of the State of New York, Respondent, v Heath E. June, Appellant.
[54 NYS3d 253]

Appeal from an order of the Oswego County Court (Donald E. Todd, J.), dated March 10, 2014. The order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). Contrary to defendant’s contention, County Court did not err in assessing 20 points against him under the risk factor for a continuing course of sexual misconduct. “ ‘[T]he court was not limited to considering only the crime of which defendant was convicted in making its determination’ ” (People v Davis, 145 AD3d 1625 , 1626 [2016]). Here, we conclude that the reliable evidence presented at the hearing, including the victim’s grand jury testimony and her statement to the police, was “sufficient to establish that defendant engaged in a continuing course of sexual misconduct with that victim” (People v Whyte, 89 AD3d 1407 , 1408 [2011]; see generally People v Hubel, 70 AD3d 1492 , 1493 [2010]).

We also reject defendant’s further contention that a downward departure from the presumptive risk level was warranted in this case. Although the court may “depart” from the

p. 1702
presumptive risk level, “[t]he expectation is that the [risk assessment] instrument will result in the proper classification in most cases so that departures will be the exception—not the rule” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). While “[a]n offender’s response to treatment, if exceptional, can be the basis for a downward departure” (id. at 17), defendant’s participation and moderate success in treatment programs does not demonstrate that his response was exceptional (see People v Pendleton, 112 AD3d 600 , 601 [2013], lv denied 22 NY3d 861 [2014]; People v Watson, 95 AD3d 978 , 979 [2012]; People v Parker, 81 AD3d 1304 , 1304 [2011], lv denied 16 NY3d 713 [2011]). Furthermore, defendant’s self-serving statements regarding his progress carry little if any weight (see People v Martinez, 104 AD3d 924 , 924-925 [2013], lv denied 21 NY3d 857 [2013]). We therefore conclude that “ ‘defendant failed to prove by a preponderance of the evidence that his response to treatment was exceptional’ ” (People v Butler, 129 AD3d 1534 , 1535 [2015], lv denied 26 NY3d 904 [2015]).

Finally, to the extent that defendant contends that the court should have considered his marriage, new apartment and recent employment in determining whether a downward departure was warranted, we further conclude that “ [defendant's ‘stable lifestyle’ was already taken into account by the risk assessment instrument” (People v Cabrera, 91 AD3d 479 , 480 [2012], lv denied 19 NY3d 801 [2012]).

Present—Smith, J.P., Peradotto, DeJoseph, NeMoyer and Curran, JJ.

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