By: Daily Record Staff//December 26, 2012
By: Daily Record Staff//December 26, 2012//
Appellate Division, Fourth Department
Sex Offender Registration Act
Risk Assessment and Determination
People v. Hays
Appealed from Oswego County Court
Background: County Court issued an order finding the defendant to be a level two risk under the Sex Offender Registration Act. On appeal, he contended County Court erred in denying his request for a downward departure to level one.
Ruling: Order is affirmed. Downward departure is warranted only where there exists a mitigating factor of a kind or to a degree, not otherwise adequately taken into account by the risk assessment guidelines. An offender’s response to a treatment program can be the basis for a downward departure, but the defendant failed to demonstrate by clear and convincing evidence that he made an exceptional response to sex offender treatment.
Wallace Van C. Auser III for the defendant; Michael G. Cianfarano for Oswego County District Attorney’s Office