People v. Collette ( 2016 )

Appeal from an order of the Supreme Court, Monroe County (Daniel J. Doyle, J.), entered September 23, 2014. 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: On appeal from an order determining that she is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that Supreme Court abused its discretion in denying her request for a downward departure from the presumptive level three risk. We reject that contention. “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 Clark, 126 AD3d 1540, 1540 [2015], lv denied 25 NY3d 910 [2015] [internal quotation marks omitted]; see People v Gillotti, 23 NY3d 841, 861 [2014]), and defendant failed to make that showing (see Clark, 126 AD3d at 1540; People v Johnson, 120 AD3d 1542, 1542 [2014], lv denied 24 NY3d 910 [2014]).

Present — Whalen, P.J., Smith, Centra, Peradotto and Carni, JJ.