| People v Wortham |
| 2014 NY Slip Op 05167 [119 AD3d 666] |
| July 9, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 The People of the State of New York,Respondent, v Christopher Wortham, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Kendra L. Hutchinson of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andLinda Breen of counsel), for respondent.
Appeal by the defendant, as limited by his brief, from so much of an order of theSupreme Court, Kings County (Chun, J.), dated October 26, 2011, as, after a hearing,designated him a level three sex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed insofar as appealed from, without costs ordisbursements.
A defendant seeking a downward departure from the presumptive risk level has theinitial 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 thecommunity and is of a kind, or to a degree, that is otherwise not adequately taken intoaccount by the [Sex Offender Registration Act] Guidelines; and (2) establishing the factsin support of its existence by a preponderance of the evidence" (People v Wyatt, 89 AD3d112, 128 [2011]; see People v Gillotti, 23 NY3d 841 [2014]). Here, the Supreme Court properlydetermined that defendant was not entitled to a downward departure and, thus, properlydesignated him a level three sex offender (see People v Wood, 112 AD3d 602 [2013]; People v Roldan, 111 AD3d909, 910 [2013]). Mastro, J.P., Chambers, Lott and Roman, JJ., concur.