| People v Rodriguez |
| 2015 NY Slip Op 02740 [127 AD3d 715] |
| April 1, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of State of New York,Respondent, v Daniel Rodriguez, Appellant. |
Richard L. Herzfeld, New York, N.Y., for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Edward A. Bannan of counsel),for respondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn,J.), dated February 28, 2014, which, after a hearing, designated him a level three sexoffender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
Once a presumptive risk level has been determined under the Sex OffenderRegistration Act (see Correction Law art 6-C [hereinafter SORA]), a defendantwho requests a downward departure from that level has the initial burden of "(1)identifying, as a matter of law, an appropriate mitigating factor, namely, a factor whichtends to establish a lower likelihood of reoffense or danger to the community and is of akind, or to a degree, that is otherwise not adequately taken into account by the [SORA]Guidelines; and (2) establishing the facts in support of its existence by a preponderanceof the evidence" (People vWyatt, 89 AD3d 112, 128 [2011]; see People v Gillotti, 23 NY3d 841, 860-861 [2014]; People v Woods, 125 AD3d622 [2015]).
Here, the defendant, whose presumptive risk level was three pursuant to an automaticoverride set forth in the SORA Guidelines, failed to identify any appropriate mitigatingfactor that would warrant a downward departure from that level. Accordingly, theCounty Court properly denied the defendant's request for a downward departure to risklevel two and adjudicated him a level three sex offender. Skelos, J.P., Roman,Hinds-Radix and LaSalle, JJ., concur.