THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. NORMAN QUIGLEY DEFENDANT APPELLANT (2018)

Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. NORMAN R. QUIGLEY, DEFENDANT–APPELLANT.

KA 17–00295

Decided: July 06, 2018

PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.

JAMES S. KERNAN, PUBLIC DEFENDER, LYONS (ROBERT TUCKER OF COUNSEL), FOR DEFENDANT–APPELLANT. MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that County Court abused its discretion in denying his application for a downward departure from his presumptive risk level. Even assuming, arguendo, that defendant preserved the contention raised on appeal for our review by seeking a downward departure on different grounds before the trial court, we conclude that it lacks merit. 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” (People v. Nilsen, 148 AD3d 1688, 1689 [4th Dept 2017], lv denied 29 NY3d 912 [2017]; see People v. Puff, 151 AD3d 1965, 1966 [4th Dept 2017], lv denied 30 NY3d 904 [2017] ).

Mark W. Bennett

Clerk of the Court

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