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

660
KA 14-00784
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

DEREK NICHOLSON, DEFENDANT-APPELLANT.


HUNT & BAKER, HAMMONDSPORT (BRENDA S. ASTON OF COUNSEL), FOR
DEFENDANT-APPELLANT.


     Appeal from an order of the Steuben County Court (Marianne
Furfure, A.J.), entered December 26, 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: 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.). We reject defendant’s contention that
reversal is required because County Court failed to state what burden
of proof it imposed on defendant’s request for a downward departure
(see generally People v Gillotti, 23 NY3d 841, 861). In any event, we
conclude, based upon our review of the record, that defendant failed
to establish his entitlement to a downward departure by a
preponderance of the evidence (see People v Merkley, 125 AD3d 1479,
1479; see generally Gillotti, 23 NY3d at 861).




Entered:   June 12, 2015                           Frances E. Cafarell
                                                   Clerk of the Court
