People v. Nilsen

Appellate Division of the Supreme Court of New York

People v. Nilsen

148 A.D.3d 1688, 50 N.Y.S.3d 199

Appellate Division of the Supreme Court of the State of New York·Decided March 24, 2017·Published·Cited by 4 cases

Opinion

Appeal from an [1689] order of the Supreme Court, Monroe County (Francis A. Af-fronti, J.), entered November 24, 2015. 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.). Defendant failed to preserve for our review his contention that he was entitled to a downward departure from his presumptive risk level (see People v St. Jean, 101 AD3d 1684, 1685 [2012]; People v Ratcliff, 53 AD3d 1110, 1110 [2008], lv denied 11 NY3d 708 [2008]). In any event, that contention lacks merit. “ ‘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 Collette, 142 AD3d 1300, 1301 [2016], lv denied 28 NY3d 912 [2017]). Here, defendant failed to establish his entitlement to a downward departure from his presumptive risk level inasmuch as he failed to establish the existence of a mitigating factor by the requisite preponderance of the evidence (see People v Reber, 145 AD3d 1627, 1628 [2016]; see generally People v Gillotti, 23 NY3d 841, 861 [2014]).

Present — Centra, J.P., Garni, Lindley, Curran and Troutman, JJ.

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Appeal from an [1689] order of the Supreme Court, Monroe County (Francis A. Af-fronti, J.), entered November 24, 2015. 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.). Defendant failed to preserve for our review his contention that he was entitled to a downward departure from his presumptive risk level (see People v St. Jean, 101 AD3d 1684, 1685 [2012]; People v Ratcliff, 53 AD3d 1110, 1110 [2008], lv denied 11 NY3d 708 [2008]). In any event, that contention lacks merit. “ ‘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 Collette, 142 AD3d 1300, 1301 [2016], lv denied 28 NY3d 912 [2017]). Here, defendant failed to establish his entitlement to a downward departure from his presumptive risk level inasmuch as he failed to establish the existence of a mitigating factor by the requisite preponderance of the evidence (see People v Reber, 145 AD3d 1627, 1628 [2016]; see generally People v Gillotti, 23 NY3d 841, 861 [2014]).

Present — Centra, J.P., Garni, Lindley, Curran and Troutman, JJ.

People v. Nilsen, 148 A.D.3d 1688, 50 N.Y.S.3d 199 (N.Y. Ct. App. 2017).

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