Majority
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated June 5, 2015, which, after a hearing, designated her a level three 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 burden of identifying, as a matter of law, an appropriate mitigating factor, and establishing, by a preponderance of the evidence, facts in support of the identified mitigating factor (see People v Gillotti, 23 NY3d 841 , 861 [2014]; People v Wyatt, 89 AD3d 112 , 128 [2011]). Here, the defendant failed to meet this burden with respect to any of the alleged mitigating factors upon which she relies (see People v Azeez, 138 AD3d 945 [2016]; People v Game, 131 AD3d 460 [2015]). Accordingly, the County Court properly denied her application for a downward departure from her presumptive designation as a level three sex offender.
Rivera, J.P., Dickerson, Maltese and Barros, JJ., concur.
Cases cited
- People v. Gillotti 23 NY3d 841 at 861 p. 842
- People v. Wyatt 89 AD3d 112 at 128 p. 842
- People v. Game 131 AD3d 460 p. 842