THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. STEPHEN REBER DEFENDANT APPELLANT (2016)

MEMORANDUM AND ORDER

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;  see generally People v. Howard, 27 NY3d 337, 341;  People v. Gillotti, 23 NY3d 841, 861).  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, lv denied _ NY3d _ [Nov. 21, 2016];  People v. Fullen, 93 AD3d 1340, 1340, lv. denied 19 NY3d 805), 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. Finocchario, 140 AD3d 1676, 1676–1677, lv denied 28 NY3d 906).  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, lv denied 28 NY3d 904;  see generally Gillotti, 23 NY3d at 861).

Frances E. Cafarell

Clerk of the Court