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

314
KA 12-02253
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

BRYON K. SELLS, 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 Monroe County Court (Frank P. Geraci,
Jr., J.), entered November 13, 2012. 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
County Court erred in denying his request for a downward departure
from his presumptive risk level. According to defendant, the effect
of incarceration on him was a mitigating circumstance warranting a
downward departure. “A departure from the presumptive risk level is
warranted where there exists an aggravating or mitigating factor of a
kind or to a degree, not otherwise adequately taken into account by
the guidelines” (People v Scott, 111 AD3d 1274, 1275, lv denied 22
NY3d 861 [internal quotation marks omitted]). In our view, “defendant
failed to establish his entitlement to a downward departure from the
presumptive risk level inasmuch as he failed to present the requisite
clear and convincing evidence of the existence of special
circumstances warranting a downward departure” (People v Marks, 31
AD3d 1142, 1143, lv denied 7 NY3d 715).




Entered:   March 28, 2014                          Frances E. Cafarell
                                                   Clerk of the Court
