People v. Reber

145 A.D.3d 1627, 43 N.Y.S.3d 925

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 23, 2016
• Status: Published

Opinion

Appeal from an order of the Monroe County Court (Victoria M. Argento, J.), entered March 30, 2015. The order determined that defendant is a level two 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 designating him a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). Contrary to defendant’s contention, County Court did not abuse its discretion in denying defendant’s request for a downward departure from the presumptive risk level (see People v Ricks, 124 AD3d 1352, 1352 [2015]; see generally People v Howard, 27 NY3d 337, 341 [2016]; People v Gillotti, 23 NY3d 841, 861 [2014]). Defendant preserved his contention for our review with respect to only three of the multiple alleged mitigating factors or circumstances now asserted by him (see People v Uphael, 140 AD3d 1143, 1144-1145 [2016], lv denied 28 NY3d 908 [2016]; People v Fullen, 93 AD3d 1340, 1340 [2012], lv denied 19 NY3d 805 [2012]), and two of those factors are adequately taken into account by the guidelines and thus improperly asserted as mitigating factors (see generally Gillotti, 23 NY3d at 861; People v Finocchiaro, 140 AD3d 1676, 1676-1677 [2016], lv denied 28 [2016]). We conclude with respect to the remaining factor that “defendant failed to establish his entitlement to a downward departure from his presumptive risk level inasmuch as he failed to establish the existence of [that] mitigating factor[ ] by the requisite preponderance of the evidence” (People v Smith, 140 AD3d 1705, 1706 [2016], lv denied 28 NY3d 904 [2016]; see generally Gillotti, 23 NY3d at 861).

Present— Centra, J.P., Peradotto, Lindley, NeMoyer and Scudder, JJ.