

People v Gelin (2015 NY Slip Op 03815)





People v Gelin


2015 NY Slip Op 03815


Decided on May 6, 2015


Appellate Division, Second 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 May 6, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

PETER B. SKELOS, J.P.
MARK C. DILLON
LEONARD B. AUSTIN
SYLVIA O. HINDS-RADIX, JJ.


2013-07275

[*1]People of State of New York, respondent,
vPatrick Gelin, appellant.


John F. Ryan, White Plains, N.Y. (David B. Weisfuse of counsel), for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff and Steven A. Bender of counsel), for respondent.

DECISION & ORDER
Appeal by the defendant from an order of the County Court, Westchester County (Warhit, J.), dated May 31, 2013, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.
ORDERED that the order is affirmed, without costs or disbursements.
A defendant seeking a downward departure from the presumptive risk level has the initial burden of "(1) 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 [Sex Offender Registration Act (hereinafter SORA)] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence" (People v Wyatt, 89 AD3d 112, 128; see People v Gillotti, 23 NY3d 841; People v Wortham, 119 AD3d 666).
In this case, the factors identified by the defendant were either adequately taken into account by the SORA guidelines (see People v Reede, 113 AD3d 663), or did not warrant downward departure from the presumptive risk level (see People v Montano, 124 AD3d 857; People v Coleman, 122 AD3d 599). Accordingly, the County Court properly denied the defendant's request for a downward departure from his presumptive designation as a level two sex offender.
SKELOS, J.P., DILLON, AUSTIN and HINDS-RADIX, JJ., concur.

2013-07275		DECISION & ORDER ON MOTION
People of State of New York, respondent,
v Patrick Gelin, appellant.

Appeal by Patrick Gelin from an order of the County Court, Westchester County, dated May 31, 2013. By order to show cause dated February 24, 2014, the parties or their attorneys were directed to show cause before this Court why an order should or should not be made and [*2]entered dismissing the above-entitled appeal. By decision and order on motion of this Court dated April 17, 2014, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the order to show cause and the papers filed in response thereto, and upon the submission of the appeal, it is
ORDERED that the motion to dismiss the appeal is denied.
SKELOS, J.P., DILLON, AUSTIN and HINDS-RADIX, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


