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People v. Krembel

150 A.D.3d 1702 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. 1702
The People of the State of New York, Respondent, v Kevyn Michael Krembel, Appellant.
[53 NYS3d 790]

Appeal from an order of the Supreme Court, Monroe County (Joanne M. Winslow, J.), entered February 4, 2015. 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: Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). Defendant was presumptively a level two risk based on the risk assessment instrument, but Supreme Court determined that defendant is a level three risk based on the presumptive override for a prior felony sex crime conviction. We reject defendant’s contention

p. 1703
that the court erred in failing to grant a downward departure to a level one risk inasmuch as defendant failed to establish by a preponderance of the evidence the existence of mitigating factors not adequately taken into account by the guidelines (see People v Reber, 145 AD3d 1627 , 1627-1628 [2016]). “In determining whether to depart from a presumptive risk level, the hearing court weighs the aggravating or mitigating factors alleged by the departure-requesting party to assess whether, under the totality of the circumstances, a departure is warranted” (People v Howard, 27 NY3d 337 , 341 [2016]). Such departures “are ‘the exception, not the rule’ ” (id.). We conclude that defendant’s mental or physical impairments, and the absence of past sexual contact with children, do not warrant a downward departure. Indeed, these factors were present before defendant committed the crimes underlying this proceeding, but they did not prevent him from committing those offenses.

Inasmuch as defendant does not dispute that he was previously convicted of a felony sex crime, and thus is presumptively a level three risk (see People v Edmonds, 133 AD3d 1332 , 1332 [2015], lv denied 26 NY3d 918 [2016]), we do not address defendant’s further contention that the court erred in its initial assessment of points before the application of the presumptive override.

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

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