Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, and SCONIERS, JJ.
MEMORANDUM:
On appeal from an order determining that he 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 refusing to grant a downward departure from his presumptive risk level based upon his successful use of medication. We reject that contention. Defendant failed to adduce any evidence that established his compliance with treatment and thus failed to meet his burden of “prov[ing] the existence of the alleged mitigating factor[ ] underlying his departure request by a preponderance of the evidence” ( People v. Gillotti, 23 N.Y.3d 841, 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.