People v. Forshey

• Decision Date: 28 January 2022
• Docket Number: 1098,KA 20-01595
• Parties: The PEOPLE of the State of New York, Respondent, v. Steven C. FORSHEY, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

201 A.D.3d 1352
158 N.Y.S.3d 673 (Mem)

The PEOPLE of the State of New York, Respondent,
v.
Steven C. FORSHEY, Defendant-Appellant.

1098
KA 20-01595

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

Entered: January 28, 2022

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALLYSON KEHL-WIERZBOWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (SUSAN M. HOWARD OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., CENTRA, NEMOYER, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

201 A.D.3d 1352

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 three risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq. ), defendant contends that County Court erred in refusing to grant him a downward

201 A.D.3d 1353

departure. That contention is not preserved for our review (see People v. Stack , 195 A.D.3d 1559, 1560, 145 N.Y.S.3d 901 [4th Dept. 2021], lv denied 37 N.Y.3d 915, 2021 WL 5475414 [2021] ; People v. Ortiz , 186 A.D.3d 1087, 1088, 127 N.Y.S.3d 363 [4th Dept. 2020], lv denied 36 N.Y.3d 901, 2020 WL 6878188 [2020] ; People v. Webb , 162 A.D.3d 918, 919, 75 N.Y.S.3d 260 [2d Dept. 2018], lv denied 32 N.Y.3d 904, 84 N.Y.S.3d 858, 109 N.E.3d 1158 [2018], rearg denied 33 N.Y.3d 1053, 103 N.Y.S.3d 26, 126 N.E.3d 1066 [2019] ). In any event, defendant's contention lacks merit because he failed to demonstrate that there exist mitigating circumstances of a kind or to a degree not otherwise taken into account by the SORA guidelines that warrant a downward departure (see 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] ; Webb , 162 A.D.3d at 919, 75 N.Y.S.3d 260 ). Defendant identifies, as a mitigating factor, his high scores in educational and vocational programs that he participated in while incarcerated. Although defendant is correct that "[a]n offender's response to treatment, if exceptional, can be the basis for a downward departure" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]), defendant did not meet his burden of establishing by a preponderance of the evidence that he had any response, let alone an exceptional response, to treatment (see Stack , 195 A.D.3d at 1560, 145 N.Y.S.3d 901 ; People v. Antonetti , 188 A.D.3d 1630, 1631, 134...