Opinion
09-30-2016
The PEOPLE of the State of New York, Respondent, v. Betty M. COLLETTE, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for defendant-appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for respondent.
Appeal from an order of the Supreme Court, Monroe County (Daniel J. Doyle, J.), entered September 23, 2014. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act. Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for respondent.
MEMORANDUM: On appeal from an order determining that she is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq. ), defendant contends that Supreme Court abused its discretion in denying her request for a downward departure from the presumptive level three risk. We reject that contention. “A defendant seeking a downward departure has the initial burden of ... 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 the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the risk assessment guidelines” (People v. Clark, 126 A.D.3d 1540, 1540, 6 N.Y.S.3d 357, lv. denied 25 N.Y.3d 910, 2015 WL 3605079 [internal quotation marks omitted]; see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ), and defendant failed to make that showing (see Clark, 126 A.D.3d at 1540, 6 N.Y.S.3d 357 ; People v. Johnson, 120 A.D.3d 1542, 1542, 993 N.Y.S.2d 208, lv. denied 24 N.Y.3d 910, 2014 WL 6609035 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
WHALEN, P.J., SMITH, CENTRA, PERADOTTO, and CARNI, JJ., concur.