People v Graves (2014 NY Slip Op 06923)
People v Graves
2014 NY Slip Op 06923
Decided on October 14, 2014
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on October 14, 2014Tom, J.P., Sweeny, Renwick, Andrias, Clark, JJ.


13224 4313/04

[*1] The People of the State of New York, Respondent,
vGarland Graves, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Bruce D. Austern of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.
Order, Supreme Court, New York County (Juan M. Merchan, J.), entered on or about April 9, 2013, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
Defendant did not preserve his contention that the court applied the wrong standard in determining his application for a downward departure, and we decline to review it in the interest of justice. As an alternate holding, we find that although the court should have applied a preponderance of the evidence standard (see People v Gillotti, NY3d, 2014 NY Slip Op 04117, *11 [2014]), application of such a standard would not have
affected the result because defendant failed to establish that the mitigating factors he alleged were of a kind or to a degree not adequately taken into account by the guidelines.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 14, 2014
CLERK


