PEOPLE v. NILSEN (2017)

Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). Defendant failed to preserve for our review his contention that he was entitled to a downward departure from his presumptive risk level (see People v. St. Jean, 101 AD3d 1684, 1685; People v. Ratcliff, 53 AD3d 1110, 1110, lv denied 11 NY3d 708). In any event, that contention lacks merit. “ ‘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. Collette, 142 AD3d 1300, 1301, lv denied 28 NY3d 912). Here, defendant failed to establish his entitlement to a downward departure from his presumptive risk level inasmuch as he failed to establish the existence of a mitigating factor by the requisite preponderance of the evidence (see People v. Reber, 145 AD3d 1627, 1628; see generally People v. Gillotti, 23 NY3d 841, 861).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: