People v Menelas, 2015 NY Slip Op 08396 [133 AD3d 731]

November 18, 2015

Appellate Division, Second Department

[*1]

The People of State of New York, Respondent,

v

Frantzdy Menelas, Appellant.

Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Brennan of counsel), for respondent.

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated November 22, 2013, 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 Supreme Court providently exercised its discretion in denying the defendant’s application for a downward departure from his presumptive designation as a level two sex offender pursuant to the Sex Offender Registration Act ( see Correction Law art 6-C [hereinafter SORA]). Although the defendant met his burden of demonstrating the existence of mitigating circumstances not adequately taken into account by the SORA guidelines, the totality of the circumstances did not warrant a departure to avoid an over-assessment of the defendant’s dangerousness and risk of sexual recidivism ( see People v Gillotti , 23 NY3d 841 , 861 [2014]). Mastro, J.P., Dickerson, Austin and Maltese, JJ., concur..