People v Colon

People v Colon 2015 NY Slip Op 00089 Decided on January 2, 2015 Appellate Division, Fourth 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 January 2, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.
1307 KA 13-01570

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

ORLANDO COLON, JR., DEFENDANT-APPELLANT.

Appeal from an order of the Supreme Court, Monroe County (Daniel J. Doyle, J.), dated July 23, 2013. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that Supreme Court abused its discretion in refusing to grant a downward departure from his presumptive risk level based upon his successful use of medication. We reject that contention. Defendant failed to adduce any evidence that established his compliance with treatment and thus failed to meet his burden of "prov[ing] the existence of the alleged mitigating factor[] underlying his departure request by a preponderance of the evidence" (People v Gillotti, 23 NY3d 841, 861).

Entered: January 2, 2015

Frances E. Cafarell

Clerk of the Court