People v. King , 48 N.Y.S.3d 910 ( 2017 )

Appeal from an order of the Genesee County Court (Robert C. Noonan, J.), dated April 24, 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: We reject defendant’s contention that County Court erred in determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). Even assuming, arguendo, that defendant preserved for our review his contention that the court should have granted him a downward departure to a level one risk, we conclude that his contention is without merit. Defendant failed to allege a mitigating circumstance that is, as a matter of law, of a kind or to a degree not adequately taken into account by the risk assessment guidelines and, to the extent that defendant adequately identified a mitigating circumstance, he failed to prove its existence by a preponderance of the evidence (see People v Gillotti, 23 NY3d 841, 861 [2014]; People v Voymas, 122 AD3d 1336, 1337 [2014], lv denied 25 NY3d 913 [2015]; see also People v Filkins, 128 AD3d 1231, 1231-1232 [2015], lv denied 26 NY3d 904 [2015]).

Present — Whalen, P.J., Centra, Peradot-to, DeJoseph and Scudder, JJ.