Opinion
03-24-2017
The PEOPLE of the State of New York, Respondent, v. Michael A. KING, Jr., Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas P. Difonzo of Counsel), for defendant-appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas P. Difonzo of Counsel), for defendant-appellant.
Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for respondent.
MEMORANDUM: We reject defendant's contention that County Court erred in determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq. ). Even assuming, arguendo, that defendant preserved for our review his contention that the court should have granted him a downward departure to a level one risk, we conclude that his contention is without merit. Defendant failed to allege a mitigating circumstance that is, as a matter of law, of a kind or to a degree not adequately taken into account by the risk assessment guidelines and, to the extent that defendant adequately identified a mitigating circumstance, he failed to prove its existence by a preponderance of the evidence (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Voymas, 122 A.D.3d 1336, 1337, 995 N.Y.S.2d 438, lv. denied 25 N.Y.3d 913, 2015 WL 3971379 ; see also People v. Filkins, 128 A.D.3d 1231, 1231–1232, 9 N.Y.S.3d 706, lv. denied 26 N.Y.3d 904, 2015 WL 5254877 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
WHALEN, P.J., CENTRA, PERADOTTO, DeJOSEPH, and SCUDDER, JJ., concur.