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

578
KA 15-00274
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

WILLIE L. SMITH, 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 (James J.
Piampiano, J.), entered December 12, 2014. 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: On appeal from an order determining that he is a
level three risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.), defendant contends that County Court
abused its discretion in refusing to grant a downward departure from
his presumptive risk level. We reject that contention. “ ‘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 taken into account by the guidelines’ ” (People v Sells,
115 AD3d 1345, 1346, lv denied 23 NY3d 905). Here, defendant failed
to establish his entitlement to a downward departure from his
presumptive risk level inasmuch as he failed to establish the
existence of any mitigating factors by the requisite preponderance of
the evidence (see People v Gillotti, 23 NY3d 841, 860-861).




Entered:    June 10, 2016                          Frances E. Cafarell
                                                   Clerk of the Court
