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

222
KA 15-00909
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, DEJOSEPH, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

MICHAEL A. KING, JR., DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Genesee County Court (Robert C.
Noonan, J.), dated April 24, 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: We reject defendant’s contention that County Court
erred in determining that he is a level two risk pursuant to the Sex
Offender Registration Act (Correction Law § 168 et seq.). Even
assuming, arguendo, that defendant preserved for our review his
contention that the court should have granted him a downward departure
to a level one risk, we conclude that his contention is without merit.
Defendant failed to allege a mitigating circumstance that is, as a
matter of law, of a kind or to a degree not adequately taken into
account by the risk assessment guidelines and, to the extent that
defendant adequately identified a mitigating circumstance, he failed
to prove its existence by a preponderance of the evidence (see People
v Gillotti, 23 NY3d 841, 861; People v Voymas, 122 AD3d 1336, 1337, lv
denied 25 NY3d 913; see also People v Filkins, 128 AD3d 1231, 1231-
1232, lv denied 26 NY3d 904).




Entered:    March 24, 2017                         Frances E. Cafarell
                                                   Clerk of the Court
