People v. Graves (121 A.D.3d 504, 2014)

Order, Supreme Court, New York County (Juan M. Merchan, J.), entered on or about April 9, 2013, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Defendant did not preserve his contention that the court applied the wrong standard in determining his application for a downward departure, and we decline to review it in the interest of justice. As an alternate holding, we find that although the court should have applied a preponderance of the evidence standard (see People v Gillotti, 23 NY3d 841, 856-857 [2014]), application of such a standard would not have affected the result because defendant failed to establish that the mitigating factors he alleged were of a kind or to a degree not adequately taken into/account by the guidelines.

Concur — Tom, J.P., Sweeny, Renwick, Andrias and Clark, JJ.