Opinion
12-23-2016
The PEOPLE of the State of New York, Respondent, v. Stephen M. REBER, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for defendant-appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for respondent.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for respondent.
MEMORANDUM: Defendant appeals from an order designating him a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq. ). Contrary to defendant's contention, County Court did not abuse its discretion in denying defendant's request for a downward departure from the presumptive risk level (see People v. Ricks, 124 A.D.3d 1352, 1352, 997 N.Y.S.2d 581 ; see generally People v. Howard, 27 N.Y.3d 337, 341, 33 N.Y.S.3d 132, 52 N.E.3d 1158 ; People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). Defendant preserved his contention for our review with respect to only three of the multiple alleged mitigating factors or circumstances now asserted by him (see People v. Uphael, 140 A.D.3d 1143, 1144–1145, 35 N.Y.S.3d 194, lv. denied 28 N.Y.3d 908, 2016 WL 6827136 ; People v. Fullen, 93 A.D.3d 1340, 1340, 940 N.Y.S.2d 515, lv. denied 19 N.Y.3d 805, 2012 WL 2036534 ), and two of those factors are adequately taken into account by the guidelines and thus improperly asserted as mitigating factors (see generally Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Finocchario, 140 A.D.3d 1676, 1676–1677, 34 N.Y.S.3d 819, lv. denied 28 N.Y.3d 906, 2016 WL 6273217 ). We conclude with respect to the remaining factor that "defendant failed to establish his entitlement to a downward departure from his presumptive risk level inasmuch as he failed to establish the existence of [that] mitigating factor[ ] by the requisite preponderance of the evidence" (People v. Smith, 140 A.D.3d 1705, 1706, 31 N.Y.S.3d 905, lv. denied 28 N.Y.3d 904, 2016 WL 5001256 ; 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.
CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, and SCUDDER, JJ., concur.