83 A.D.3d 1027
N.Y. App. Div.
2011

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v KEITH SIVELLS, Appellant.

Appellate Division of the Supreme Court of the State of New York, Second Department

April 12, 2011

921 N.Y.S.2d 530

Appeal by the defendant from an order of the Supreme Court, Kings County (Firetog, J.), dated November 16, 2009, which, after a hearing, designated him a level three sex offender and a sexually violent 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 risk level status. The party seeking a downward departure from the presumptive risk level has the burden of demonstrating that there are mitigating factors “of a kind, or to a degree, that [are] otherwise not adequately taken into account” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]) by the guidelines (see People v Mendez, 79 AD3d 834 [2010], lv denied 16 NY3d 707 [2011]; People v Johnson, 77 AD3d 897 [2010], lv denied 16 NY3d 704 [2011]; People v Maiello, 32 AD3d 463 [2006]). Here, the defendant failed to demonstrate that there existed mitigating factors of a kind or to a degree not otherwise taken into account by the guidelines.

Covello, J.P., Eng, Hall and Roman, JJ., concur.