Opinion
KA 16–01948 1124
11-16-2018
The PEOPLE of the State of New York, Respondent, v. Allen COBB, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE, OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE, OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ). Contrary to defendant's contentions, we conclude that County Court properly applied the analysis prescribed by People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 (2014) and, in so doing, properly determined that defendant failed to establish by a preponderance of the evidence " ‘the existence of the mitigating circumstances’ that would justify a downward departure" ( People v. Leach, 158 A.D.3d 1240, 1241, 70 N.Y.S.3d 734 [4th Dept. 2018], lv denied 31 N.Y.3d 905, 2018 WL 2013055 [2018], quoting Gillotti, 23 N.Y.3d at 864, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see People v. Bernecky, 161 A.D.3d 1540, 1541, 76 N.Y.S.3d 723 [4th Dept. 2018], lv denied 32 N.Y.3d 901, 84 N.Y.S.3d 854, 109 N.E.3d 1154 [2018] ).