| People v Rosales |
| 2015 NY Slip Op 08398 [133 AD3d 733] |
| November 18, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of State of New York,Respondent, v Oscar Rosales, Appellant. |
Seymour W. James, Jr., New York, N.Y. (Shane Tela of counsel), for appellant.
Daniel L. Master, Jr., Acting District Attorney, Staten Island, N.Y. (Morrie I.Kleinbart and Anne Grady of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Richmond County(Rienzi, J.), dated December 14, 2012, which, after a hearing, designated him a level twosex 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 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, 861 [2014]).
Here, the defendant failed to meet this burden with respect to any of the factorsalleged by him at the SORA hearing (see People v Correnti, 126 AD3d 681 [2015]). Hiscontention that there was an over-assessment of points under risk factor 2 because thevictim's lack of consent was due only to her inability to consent by virtue of her age isunpreserved for appellate review, as he failed to raise this factor at the SORA hearing (see People v Fernandez, 91AD3d 737, 738 [2012]). Accordingly, the Supreme Court properly denied hisrequest for a downward departure from his presumptive level two designation (see People v Houston, 122AD3d 915 [2014]). Rivera, J.P., Balkin, Miller and Hinds-Radix, JJ., concur.