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

1251
KA 15-00814
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

STEPHEN M. REBER, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY 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 (Victoria M.
Argento, J.), entered March 30, 2015. The order determined that
defendant is a level two 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 designating him a
level two sex offender pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.). Contrary to defendant’s contention,
County Court did not abuse its discretion in denying defendant’s
request for a downward departure from the presumptive risk level (see
People v Ricks, 124 AD3d 1352, 1352; see generally People v Howard, 27
NY3d 337, 341; People v Gillotti, 23 NY3d 841, 861). Defendant
preserved his contention for our review with respect to only three of
the multiple alleged mitigating factors or circumstances now asserted
by him (see People v Uphael, 140 AD3d 1143, 1144-1145, lv denied ___
NY3d ___ [Nov. 21, 2016]; People v Fullen, 93 AD3d 1340, 1340, lv
denied 19 NY3d 805), and two of those factors are adequately taken
into account by the guidelines and thus improperly asserted as
mitigating factors (see generally Gillotti, 23 NY3d at 861; People v
Finocchario, 140 AD3d 1676, 1676-1677, lv denied 28 NY3d 906). We
conclude with respect to the remaining factor that “defendant failed
to establish his entitlement to a downward departure from his
presumptive risk level inasmuch as he failed to establish the
existence of [that] mitigating factor[] by the requisite preponderance
of the evidence” (People v Smith, 140 AD3d 1705, 1706, lv denied 28
NY3d 904; see generally Gillotti, 23 NY3d at 861).

Entered:    December 23, 2016                      Frances E. Cafarell
                                                   Clerk of the Court
