COLLETTE, BETTY M., PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
676
KA 14-02142
PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
BETTY M. COLLETTE, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.
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, lv denied
25 NY3d 910 [internal quotation marks omitted]; see People v Gillotti,
23 NY3d 841, 861), and defendant failed to make that showing (see
Clark, 126 AD3d at 1540; People v Johnson, 120 AD3d 1542, 1542, lv
denied 24 NY3d 910).
Entered: September 30, 2016 Frances E. Cafarell
Clerk of the Court