Opinion
399 KA 15-02151.
03-24-2017
The PEOPLE of the State of New York, Respondent, v. Eric G. NILSEN, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), For Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), For Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
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. ). Defendant failed to preserve for our review his contention that he was entitled to a downward departure from his presumptive risk level (see People v. St. Jean, 101 A.D.3d 1684, 1685, 956 N.Y.S.2d 763 ; People v. Ratcliff, 53 A.D.3d 1110, 1110, 862 N.Y.S.2d 686, lv. denied 11 N.Y.3d 708, 868 N.Y.S.2d 600, 897 N.E.2d 1084 ). In any event, that contention lacks merit. " ‘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. Collette, 142 A.D.3d 1300, 1301, 38 N.Y.S.3d 455, lv. denied 28 N.Y.3d 912, 2017 WL 53448 ). 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 (see People v. Reber, 145 A.D.3d 1627, 1628, 43 N.Y.S.3d 925 ; see generally People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.