           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

1307
KA 13-01570
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

ORLANDO COLON, JR., DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Daniel
J. Doyle, J.), dated July 23, 2013. The order determined that
defendant is a level three risk pursuant to the Sex Offender
Registration Act.

     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 Supreme Court
abused its discretion in refusing to grant a downward departure from
his presumptive risk level based upon his successful use of
medication. We reject that contention. Defendant failed to adduce
any evidence that established his compliance with treatment and thus
failed to meet his burden of “prov[ing] the existence of the alleged
mitigating factor[] underlying his departure request by a
preponderance of the evidence” (People v Gillotti, 23 NY3d 841, 861).




Entered:    January 2, 2015                        Frances E. Cafarell
                                                   Clerk of the Court
