THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. BETTY COLLETTE DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. BETTY M. COLLETTE, DEFENDANT–APPELLANT.

KA 14–02142

Decided: September 30, 2016

PRESENT:  WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ. TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN 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 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).

Frances E. Cafarell

Clerk of the Court