SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

715 

KA 14-02132 

PRESENT: WHALEN, P.J., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

NICHOLAS J. LOUGHLIN, 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. 

 

Appeal from an order of the Monroe County Court (James J.

Piampiano, J.), entered November 18, 2013. 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.). Inasmuch as defendant’s counsel

agreed at the hearing that it was within County Court’s discretion to

consider, under risk factor 9, defendant’s prior person in need of

supervision (PINS) adjudication involving a sexual offense, defendant

waived his present challenge to the court’s application of that prior

adjudication in determining defendant’s risk level on the ground that

it is a PINS adjudication (see generally People v Dominguez, 257 AD2d

511, 512, lv denied 93 NY2d 872). We reject defendant’s further

contention that the court erred in considering the PINS adjudication

because defendant was only 10 years old at the time he committed the

sexual offense. The record reflects that the court properly

considered defendant’s age at the time of the offense under risk

factor 8, “Age at First Sex Crime.” According to the risk assessment

guidelines, “[t]he offender’s age at the commission of his first sex

crime . . . is a factor associated with recidivism: those who offend

at a young age are more prone to reoffend” (Sex Offender Registration

Act: Risk Assessment Guidelines and Commentary, at 13 [2006]). 

Defendant also contends that the court improperly assessed 15

points against him under risk factor 12, “Acceptance of

Responsibility,” based upon his alleged refusal to participate in sex

offender treatment. We agree. Here, the case summary establishes
-2- 715 

KA 14-02132 

that defendant was “removed” from his sex offender treatment program

based on disciplinary violations, which under the risk assessment

guidelines is “not tantamount to a refusal to participate in

treatment” (People v Ford, 25 NY3d 939, 941; cf. People v Jackson, 134

AD3d 1580, 1581). However, even without those 15 points, defendant

remains a level three risk (see generally People v Laraby, 32 AD3d

1130, 1131).

Finally, although defendant is correct that the court should have

applied a preponderance of the evidence standard to his request for a

downward departure from his presumptive risk level rather than a clear

and convincing evidence standard (see People v Gillotti, 23 NY3d 841,

860-861), remittal is not required because the record is sufficient to

enable us to determine under the proper standard whether the court

erred in denying defendant’s request (see People v Merkley, 125 AD3d

1479, 1479). We conclude that the court properly determined that

defendant’s alleged mitigating factor was not otherwise accounted for

in the risk assessment guidelines (see generally People v Watson, 95

AD3d 978, 979), but defendant failed to meet his burden of

demonstrating by a preponderance of the evidence how that alleged

mitigating factor would tend to reduce the risk of his own recidivism

or danger to the community (see generally People v Johnson, 120 AD3d

1542, 1542, lv denied 24 NY3d 910). Thus, the court lacked discretion

to depart from the presumptive risk level (see id.).

Entered: December 23, 2016 Frances E. Cafarell

Clerk of the Court