People v. Gelin

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 [2011]; see People v Gillotti, 23 NY3d 841 [2014]; People v Wortham, 119 AD3d 666 [2014]).

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 [2014]), or did not warrant downward departure from the presumptive risk level (see People v Montano, 124 AD3d 857 [2015]; People v Coleman, 122 AD3d 599 [2014]). 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.

Appeal by Patrick Gelin from an order of the County Court,

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.