Opinion
2015-06-12
The PEOPLE of the State of New York, Respondent, v. Derek NICHOLSON, Defendant–Appellant.
Hunt & Baker, Hammondsport (Brenda S. Aston of Counsel), for Defendant–Appellant.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, SCONIERS, AND WHALEN, JJ.
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.). We reject defendant's contention that reversal is required because County Court failed to state what burden of proof it imposed on defendant's request for a downward departure ( see generally People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701). In any event, we conclude, based upon our review of the record, that defendant failed to establish his entitlement to a downward departure by a preponderance of the evidence ( see People v. Merkley, 125 A.D.3d 1479, 1479, 3 N.Y.S.3d 848; see generally Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.