KING, JR., MICHAEL A., PEOPLE v

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department [222] KA 15-00909 PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, DEJOSEPH, AND SCUDDER, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V MEMORANDUM AND ORDER MICHAEL A. KING, JR., DEFENDANT-APPELLANT. THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT-APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF COUNSEL), FOR RESPONDENT. Appeal from an order of the Genesee County Court (Robert C. Noonan, J.), dated April 24, 2015. The order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act. It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: We reject defendant’s contention that County Court erred in determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). Even assuming, arguendo, that defendant preserved for our review his contention that the court should have granted him a downward departure to a level one risk, we conclude that his contention is without merit. Defendant failed to allege a mitigating circumstance that is, as a matter of law, of a kind or to a degree not adequately taken into account by the risk assessment guidelines and, to the extent that defendant adequately identified a mitigating circumstance, he failed to prove its existence by a preponderance of the evidence (see People v Gillotti, 23 NY3d 841, 861 ; People v Voymas, 122 AD3d 1336, 1337 , lv denied 25 NY3d 913 ; see also People v Filkins, 128 AD3d 1231 , 12311232, lv denied 26 NY3d 904 ). Entered: March 24, 2017 Frances E. Cafarell Clerk of the Court