People v. Nunez (121 A.D.3d 766, 2014)

Appeal by the defendant from an order of the County Court, Dutchess County (Forman, J.), dated January 3, 2013, which, after a hearing, designated him a level two sexually violent offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

“A defendant seeking a downward departure has the initial burden of ‘(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is not otherwise adequately taken into account by the [Sex Offender Registration Act] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence’ ” (People v Roldan, 111 AD3d 909, 910 [2013], quoting People v Wyatt, 89 AD3d 112, 128 [2011]). Upon our review of the record, we conclude that, contrary to his primary argument on appeal, the defendant failed to meet his burden in this respect (see People v Wortham, 119 AD3d 666 [2014]; People v Wood, 112 AD3d 602 [2013]).

The defendant’s remaining contentions are without merit.

Accordingly, the County Court properly denied the defendant’s application for a downward departure from his designation as a level two sexually violent offender pursuant to Correction Law article 6-C.

Mastro, J.E, Chambers, Austin and Sgroi, JJ., concur.