THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. MICHAEL MAIER DEFENDANT APPELLANT (2017)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.).  The Board of Examiners of Sex Offenders (Board) determined that defendant was a level one risk with a total risk factor score of 30, but it further determined that there were aggravating circumstances of a kind or to a degree not taken into account by the risk assessment guidelines, and the Board thus recommended an upward departure to a level two risk.  Following a hearing, County Court recalculated defendant's presumptive risk level by assigning points under risk factor 3 (three or more victims) and 7 (relationship between offender and victims, i.e., strangers), resulting in a total risk factor score of 80, which is a level two risk.

We reject defendant's contention that the court erred in denying his request for a downward departure to a risk level one.  Defendant failed to meet his initial burden of identifying and establishing mitigating factors that are not adequately taken into account by the risk assessment guidelines (see People v. Cooper, 141 AD3d 710, 710–711, lv denied 28 NY3d 908).

Frances E. Cafarell

Clerk of the Court