People v Cobb

People v Cobb 2018 NY Slip Op 07865 Decided on November 16, 2018 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 November 16, 2018 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, CURRAN, AND TROUTMAN, JJ.
1124 KA 16-01948

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

v

ALLEN COBB, DEFENDANT-APPELLANT.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT-APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.

Appeal from an order of the Erie County Court (David W. Foley, A.J.), entered September 19, 2016. 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.). Contrary to defendant's contentions, we conclude that County Court properly applied the analysis prescribed by People v Gillotti (23 NY3d 841, 861 [2014]) and, in so doing, properly determined that defendant failed to establish by a preponderance of the evidence " the existence of the mitigating circumstances' that would justify a downward departure" (People v Leach, 158 AD3d 1240, 1241 [4th Dept 2018], lv denied 31 NY3d 905 [2018], quoting Gillotti, 23 NY3d at 864; see People v Bernecky, 161 AD3d 1540, 1541 [4th Dept 2018], lv denied 32 NY3d 901 [2018]).

Entered: November 16, 2018

Mark W. Bennett

Clerk of the Court