People v. Sells

Appeal from an order of the Monroe County Court (Frank E Geraci, Jr., J), entered November 13, 2012. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act. It is hereby ordered that the order so appealed from is unanimously affirmed without costs. Memorandum: Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender [1346] Registration Act (Correction Law § 168 et seq.). We reject defendant’s contention that County Court erred in denying his request for a downward departure from his presumptive risk level. According to defendant, the effect of incarceration on him was a mitigating circumstance warranting a downward departure. “A departure from the presumptive risk level is warranted where there exists an aggravating or mitigating factor of a kind or to a degree, not otherwise adequately taken into account by the guidelines” (People v Scott, 111 AD3d 1274, 1275 [2013], lv denied 22 NY3d 861 [2014] [internal quotation marks omitted]). In our view, “defendant failed to establish his entitlement to a downward departure from the presumptive risk level inasmuch as he failed to present the requisite clear and convincing evidence of the existence of special circumstances warranting a downward departure” (People v Marks, 31 AD3d 1142, 1143 [2006], lv denied 7 NY3d 715 [2006]). Present — Smith, J.P., Fahey, Peradotto, Carni and Sconiers, JJ.