Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.
Opinion
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated October 24, 2013, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
A defendant seeking a downward departure from the presumptive risk level has the initial burden of “(1) 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 [Sex Offender Registration Act: Risk Assessment Guidelines and Commentary]; and (2) establishing the facts in support of its existence by a preponderance of the evidence” (People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85 ; see People v. Gillotti, 23 N.Y.3d 841, 861–862, 994 N.Y.S.2d 1, 18 N.E.3d 701 ).
Here, the defendant failed to establish facts in support of his claim that his response to treatment had been exceptional, so as to warrant a downward departure (see People v. Coleman, 122 A.D.3d 599, 995 N.Y.S.2d 223 ; People v. Tisman, 116 A.D.3d 1018, 1019, 984 N.Y.S.2d 604 ).
Accordingly, the County Court properly denied the defendant's request for a downward departure from his presumptive designation as a level three sex offender.
DILLON, J.P., LEVENTHAL, CHAMBERS and DUFFY, JJ., concur.