People v Russo

People v Russo 2012 NY Slip Op 02852 Decided on April 17, 2012 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 17, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
DANIEL D. ANGIOLILLO
ARIEL E. BELEN
JEFFREY A. COHEN, JJ.
2011-00467

[*1]People of State of New York, respondent,

v

Jason Russo, appellant.




Anthony J. Colleluori, Melville, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Steven
A. Bender and Richard Longworth
Hecht of counsel), for respondent.


DECISION & ORDER

Appeal by the defendant from an order of the County Court, Westchester County (Cacace, J.), dated November 29, 2010, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed, without costs or disbursements.

Contrary to the defendant's contention, the People met their burden of establishing by clear and convincing evidence that the defendant should be designated a level three sex offender pursuant to Correction Law article 6-C (hereinafter SORA; see Correction Law § 168-n[3]; People v Johnson, 11 NY3d 416; People v Crandall, 90 AD3d 628, 629; People v Wyatt, 89 AD3d 112, 118, lv denied 18 NY3d 803). Further, the County Court providently exercised its discretion in denying the defendant's request for a downward departure to level two, since the defendant failed to meet his burden of establishing, by a preponderance of the evidence, the existence of a mitigating factor of a kind or to a degree that is otherwise not adequately taken into account by the SORA Risk Assessment Guidelines (see People v Johnson, 11 NY3d at 421; People v Wyatt, 89 AD3d at 119-121).
DILLON, J.P., ANGIOLILLO, BELEN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino [*2]

Clerk of the Court