People v. Collick

127 A.D.3d 830, 4 N.Y.S.3d 897

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 8, 2015
• Docket: 2014-06020
• Status: Published

Opinion

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated May 8, 2014, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

The Board of Examiners of Sex Offenders recommended that the defendant be classified as a level two sex offender, and the defendant requested a downward departure from that presumptive risk level. A court may depart from the presumptive risk level where the defendant identifies mitigating circumstances of a kind or to a degree not adequately taken into account by the guidelines and proves by a preponderance of the evidence the existence of those circumstances in his or her case (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; People v Gillotti, 23 NY3d 841, 861 [2014]; People v Torres, 124 AD3d 744 [2015]; People v Wyatt, 89 AD3d 112, 124, 128 [2011]). Here, the County Court properly determined that the mitigating circumstances identified by the defendant either were adequately taken into account by the guidelines (see People v Torres, 124 AD3d at 745; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 16-17 [2006]) or were not proven by a preponderance of the evidence (see People v Jackson, 114 AD3d 739, 740 [2014]; People v Pendleton, 112 AD3d 600 [2013]; People v Roldan, 111 AD3d 909 [2013]; People v Lombard, 30 AD3d 573, 574 [2006]). Accordingly, the defendant was properly designated a level two sex offender.

Skelos, J.R, Roman, Hinds-Radix and LaSalle, JJ., concur.