People v. Findley

140 A.D.3d 842, 31 N.Y.S.3d 892

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 8, 2016
• Docket: 2015-05726
• Status: Published

Opinion

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated June 5, 2015, which, after a hearing, designated her a level three sex offender pursuant to Correction Law article 6-C.

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

A defendant seeking a downward departure from the presumptive risk level has the burden of identifying, as a matter of law, an appropriate mitigating factor, and establishing, by a preponderance of the evidence, facts in support of the identified mitigating factor (see People v Gillotti, 23 NY3d 841, 861 [2014]; People v Wyatt, 89 AD3d 112, 128 [2011]). Here, the defendant failed to meet this burden with respect to any of the alleged mitigating factors upon which she relies (see People v Azeez, 138 AD3d 945 [2016]; People v Game, 131 AD3d 460 [2015]). Accordingly, the County Court properly denied her application for a downward departure from her presumptive designation as a level three sex offender.

Rivera, J.P., Dickerson, Maltese and Barros, JJ., concur.