SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
399
KA 15-02151
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ERIC G. NILSEN, 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.
Appeal from an order of the Supreme Court, Monroe County (Francis
A. Affronti, J.), entered November 24, 2015. 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 Registration Act
(Correction Law § 168 et seq.). Defendant failed to preserve for our
review his contention that he was entitled to a downward departure
from his presumptive risk level (see People v St. Jean, 101 AD3d 1684,
1685; People v Ratcliff, 53 AD3d 1110, 1110, lv denied 11 NY3d 708).
In any event, that contention lacks merit. “ ‘A defendant seeking a
downward departure has the initial burden of . . . 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 risk assessment guidelines’ ”
(People v Collette, 142 AD3d 1300, 1301, lv denied 28 NY3d 912).
Here, defendant failed to establish his entitlement to a downward
departure from his presumptive risk level inasmuch as he failed to
establish the existence of a mitigating factor by the requisite
preponderance of the evidence (see People v Reber, 145 AD3d 1627,
1628; see generally People v Gillotti, 23 NY3d 841, 861).
Entered: March 24, 2017 Frances E. Cafarell
Clerk of the Court