The People of the State of New York, Respondent, v. Willie L. Smith, Appellant

The People of the State of New York, Respondent, v Willie L. Smith, Appellant. [31 NYS3d 905] [MAJORITY] Appeal from an order of the Monroe County Court (James J. Piampiano, J.), entered December 12, 2014. 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: 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 County Court abused its discretion in refusing to grant a downward departure from his presumptive risk level. We reject that contention. “ ‘A departure from the presumptive risk level is warranted where there exists an aggravating or mitigating factor of a kind or to a degree, not otherwise taken into account by the guidelines’ ” (People v Sells, 115 AD3d 1345, 1346 [2014], lv denied 23 NY3d 905 [2014]). Here, defendant failed to establish his entitlement to a downward departure from his presumptive risk level inasmuch as he failed to establish the existence of any mitigating factors by the requisite preponderance of the evidence (see People v Gillotti, 23 NY3d 841, 860-861 [2014]). Present — Centra, J.P., Peradotto, Lindley, DeJoseph and Curran, JJ.