THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ALLEN COBB DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ALLEN COBB, DEFENDANT–APPELLANT.

KA 16–01948

Decided: November 16, 2018

PRESENT:  SMITH, J.P., CENTRA, PERADOTTO, CURRAN, AND TROUTMAN, JJ. THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT–APPELLANT.

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 three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.).  Contrary to defendant's contentions, we conclude that County Court properly applied the analysis prescribed by People v. Gillotti (23 NY3d 841, 861 [2014] ) and, in so doing, properly determined that defendant failed to establish by a preponderance of the evidence “ ‘the existence of the mitigating circumstances' that would justify a downward departure” (People v. Leach, 158 AD3d 1240, 1241 [4th Dept 2018], lv denied 31 NY3d 905 [2018], quoting Gillotti, 23 NY3d at 864;  see People v. Bernecky, 161 AD3d 1540, 1541 [4th Dept 2018], lv denied 32 NY3d 901 [2018] ).

Mark W. Bennett

Clerk of the Court