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

1203
KA 13-00886
PRESENT: SMITH, J.P., CENTRA, FAHEY, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

AARON VOYMAS, DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (ROBERT TUCKER OF COUNSEL),
FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA, FOR RESPONDENT.


     Appeal from an order of the Ontario County Court (William F.
Kocher, J.), dated January 25, 2013. 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 determining that he
is a level two risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.). Although the Board of Examiners of
Sex Offenders (Board) recommended a downward departure from the
presumptive classification of defendant as a level two risk, County
Court “was not bound by the Board’s recommendation and, in the proper
exercise of its discretion, the court determined defendant’s risk
level based upon the record before it” (People v Woodard, 63 AD3d
1655, 1656, lv denied 13 NY3d 706). The record establishes that
defendant failed to allege mitigating circumstances that are, as a
matter of law, of a kind or to a degree not adequately taken into
account by the Risk Assessment Guidelines and Commentary and, to the
extent defendant did allege such mitigating circumstances, he failed
to prove their existence by a preponderance of the evidence (see
People v Gillotti, 23 NY3d 841, 861).




Entered:    November 14, 2014                      Frances E. Cafarell
                                                   Clerk of the Court
