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People v. Bogan

Supreme Court, Appellate Division, Fourth Department, New York.
Mar 28, 2014
115 A.D.3d 1359 (N.Y. App. Div. 2014)

Opinion

2014-03-28

The PEOPLE of the State of New York, Respondent, v. Requiere BOGAN, Defendant–Appellant.

Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.



Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS AND WHALEN, JJ.

MEMORANDUM:

On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that County Court erred in denying his request for a downward departure to risk level two. We reject that contention. “A departure from the presumptive risk level is warranted where ‘there exists an aggravating or mitigating factor of a kind or to a degree, not otherwise adequately taken into account by the guidelines' (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [1997 ed.] ). There must exist clear and convincing evidence of the existence of special circumstance to warrant an upward or downward departure” ( People v. Guaman, 8 A.D.3d 545, 545, 778 N.Y.S.2d 704;see People v. McDaniel, 27 A.D.3d 1158, 1159, 810 N.Y.S.2d 723,lv. denied7 N.Y.3d 703, 819 N.Y.S.2d 870, 853 N.E.2d 241;People v. Douglas, 18 A.D.3d 967, 968, 794 N.Y.S.2d 730,lv. denied5 N.Y.3d 710, 804 N.Y.S.2d 34, 837 N.E.2d 733).

Here, the reasons proffered by defendant in support of his request for a downward departure—the fact that he participated in various programs offered to him in prison, thus making him a “changed man,” and his assertion that he is not a “serial rapist”—were already taken into account by the guidelines, as reflected by the scoring on the risk assessment instrument, and thus may not provide the basis for a downward departure ( see People v. Smith, 108 A.D.3d 1215, 1216, 969 N.Y.S.2d 369,lv. denied22 N.Y.3d 856, 2013 WL 6097228;People v. Kotzen, 100 A.D.3d 1162, 1162–1163, 954 N.Y.S.2d 237,lv. denied 20 N.Y.3d 860, 2013 WL 538022). Defendant thus “failed to establish his entitlement to a downward departure from the presumptive risk level inasmuch as he failed to present the requisite clear and convincing evidence of the existence of special circumstances warranting a downward departure” ( People v. Marks, 31 A.D.3d 1142, 1143, 817 N.Y.S.2d 555,lv. denied7 N.Y.3d 715, 826 N.Y.S.2d 181, 859 N.E.2d 921;see People v. Hamelinck, 23 A.D.3d 1060, 1060, 803 N.Y.S.2d 469).

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


Summaries of

People v. Bogan

Supreme Court, Appellate Division, Fourth Department, New York.
Mar 28, 2014
115 A.D.3d 1359 (N.Y. App. Div. 2014)
Case details for

People v. Bogan

Case Details

Full title:The PEOPLE of the State of New York, Respondent, v. Requiere BOGAN…

Court:Supreme Court, Appellate Division, Fourth Department, New York.

Date published: Mar 28, 2014

Citations

115 A.D.3d 1359 (N.Y. App. Div. 2014)
115 A.D.3d 1359
2014 N.Y. Slip Op. 2201

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