People v Collick, 2015 NY Slip Op 02945 [127 AD3d 830]
April 8, 2015
Appellate Division, Second Department
[*1]
The People of the State of New York, Respondent,
v
Burley S. Collick, Appellant.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Ronnie Jane Lamm of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated May 8, 2014, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The Board of Examiners of Sex Offenders recommended that the defendant be classified as a level two sex offender, and the defendant requested a downward departure from that presumptive risk level. A court may depart from the presumptive risk level where the defendant identifies mitigating circumstances of a kind or to a degree not adequately taken into account by the guidelines and proves by a preponderance of the evidence the existence of those circumstances in his or her case ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; People v Gillotti , 23 NY3d 841 , 861 [2014]; People v Torres , 124 AD3d 744 [2015]; People v Wyatt , 89 AD3d 112 , 124, 128 [2011]). Here, the County Court properly determined that the mitigating circumstances identified by the defendant either were adequately taken into account by the guidelines ( see People v Torres , 124 AD3d at 745; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 16-17 [2006]) or were not proven by a preponderance of the evidence ( see People v Jackson , 114 AD3d 739 , 740 [2014]; People v Pendleton , 112 AD3d 600 [2013]; People v Roldan , 111 AD3d 909 [2013]; People v Lombard , 30 AD3d 573 , 574 [2006]). Accordingly, the defendant was properly designated a level two sex offender. Skelos, J.P., Roman, Hinds-Radix and LaSalle, JJ., concur..