People v. Nunez

121 A.D.3d 766, 992 N.Y.S.2d 905

Opinion

Appeal by the defendant from an order of the County Court, Dutchess County (Forman, J.), dated January 3, 2013, which, after a hearing, designated him a level two sexually violent offender pursuant to Correction Law article 6-C.

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

“A defendant seeking a downward departure has the initial burden of ‘(1) 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 not otherwise adequately taken into account by the [Sex Offender Registration Act] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence’ ” (People v Roldan, 111 AD3d 909, 910 [2013], quoting People v Wyatt, 89 AD3d 112, 128 [2011]). Upon our review of the record, we conclude that, contrary to his primary argument on appeal, the defendant failed to meet his burden in this respect (see People v Wortham, 119 AD3d 666 [2014]; People v Wood, 112 AD3d 602 [2013]).

The defendant’s remaining contentions are without merit.

Accordingly, the County Court properly denied the defendant’s application for a downward departure from his designation as a level two sexually violent offender pursuant to Correction Law article 6-C.

Mastro, J.E, Chambers, Austin and Sgroi, JJ., concur.