People v. Collette

Appellate Division of the Supreme Court of New York

People v. Collette

142 A.D.3d 1300, 38 N.Y.S.3d 455

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 30, 2016

StatusPublished

Cited by2 cases

This text of 142 A.D.3d 1300 (People v. Collette) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Collette, 142 A.D.3d 1300, 38 N.Y.S.3d 455 (N.Y. Ct. App. 2016).

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Opinion

Appeal from an order of the Supreme Court, Monroe County (Daniel J. Doyle, J.), entered September 23, 2014. 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.

[1301]*1301Memorandum: On appeal from an order determining that she is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that Supreme Court abused its discretion in denying her request for a downward departure from the presumptive level three risk. We reject that contention. “A defendant seeking a downward departure has the initial burden of . . . identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the risk assessment guidelines” (People v Clark, 126 AD3d 1540, 1540 [2015], lv denied 25 NY3d 910 [2015] [internal quotation marks omitted]; see People v Gillotti, 23 NY3d 841, 861 [2014]), and defendant failed to make that showing (see Clark, 126 AD3d at 1540; People v Johnson, 120 AD3d 1542, 1542 [2014], lv denied 24 NY3d 910 [2014]).

Present — Whalen, P.J., Smith, Centra, Peradotto and Carni, JJ.

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Appeal from an order of the Supreme Court, Monroe County (Daniel J. Doyle, J.), entered September 23, 2014. 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.

[1301]*1301Memorandum: On appeal from an order determining that she is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that Supreme Court abused its discretion in denying her request for a downward departure from the presumptive level three risk. We reject that contention. “A defendant seeking a downward departure has the initial burden of . . . identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the risk assessment guidelines” (People v Clark, 126 AD3d 1540, 1540 [2015], lv denied 25 NY3d 910 [2015] [internal quotation marks omitted]; see People v Gillotti, 23 NY3d 841, 861 [2014]), and defendant failed to make that showing (see Clark, 126 AD3d at 1540; People v Johnson, 120 AD3d 1542, 1542 [2014], lv denied 24 NY3d 910 [2014]).

Present — Whalen, P.J., Smith, Centra, Peradotto and Carni, JJ.

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142 A.D.3d 1300, 38 N.Y.S.3d 455, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-collette-nyappdiv-2016.

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