Opinion
04-08-2015
PEOPLE of State of New York, respondent, v. Burley S. COLLICK, appellant.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Ronnie Jane Lamm of counsel), for respondent.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Ronnie Jane Lamm of counsel), for respondent.
Opinion Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated May 8, 2014, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
The Board of Examiners of Sex Offenders recommended that the defendant be classified as a level two sex offender, and the defendant requested a downward departure from that presumptive risk level. A court may depart from the presumptive risk level where the defendant identifies mitigating circumstances of a kind or to a degree not adequately taken into account by the guidelines and proves by a preponderance of the evidence the existence of those circumstances in his or her case (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Torres, 124 A.D.3d 744, 998 N.Y.S.2d 464 ; People v. Wyatt, 89 A.D.3d 112, 124, 128, 931 N.Y.S.2d 85 ). Here, the County Court properly determined that the mitigating circumstances identified by the defendant either were adequately taken into account by the guidelines (see People v. Torres, 124 A.D.3d at 745, 998 N.Y.S.2d 464 ; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 16–17 [2006] ) or were not proven by a preponderance of the evidence (see People v. Jackson, 114 A.D.3d 739, 740, 980 N.Y.S.2d 152 ; People v. Pendleton, 112 A.D.3d 600, 975 N.Y.S.2d 908 ; People v. Roldan, 111 A.D.3d 909, 975 N.Y.S.2d 681 ; People v. Lombard, 30 A.D.3d 573, 574, 818 N.Y.S.2d 145 ). Accordingly, the defendant was properly designated a level two sex offender.
SKELOS, J.P., ROMAN, HINDS–RADIX and LaSALLE, JJ., concur.