| People v Gelin |
| 2015 NY Slip Op 03815 [128 AD3d 657] |
| May 6, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Patrick Gelin, Appellant. |
John F. Ryan, White Plains, N.Y. (David B. Weisfuse of counsel), for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff and Steven A.Bender of counsel), for respondent.
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 sexoffender 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 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 (hereinafter SORA)] Guidelines; and (2)establishing the facts in support of its existence by a preponderance of the evidence" (People v Wyatt, 89 AD3d112, 128 [2011]; see Peoplev 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 intoaccount by the SORA guidelines (see People v Reede, 113 AD3d 663 [2014]), or did notwarrant downward departure from the presumptive risk level (see People v Montano, 124AD3d 857 [2015]; People vColeman, 122 AD3d 599 [2014]). Accordingly, the County Court properlydenied the defendant's request for a downward departure from his presumptivedesignation 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, Westchester County,dated May 31, 2013. By order to show cause dated February 24, 2014, the parties or theirattorneys were directed to show cause before this Court why an order should or shouldnot be made and [*2]entered dismissing theabove-entitled appeal. By decision and order on motion of this Court dated April 17,2014, the motion was held in abeyance and referred to the panel of Justices hearing theappeal for determination upon the argument or submission thereof.
Upon the order to show cause and the papers filed in response thereto, and upon thesubmission of the appeal, it is
Ordered that the motion to dismiss the appeal is denied. Skelos, J.P., Dillon, Austinand Hinds-Radix, JJ., concur.