Opinion
No. 2006-10572.
November 12, 2008.
Appeal by the defendant from an order of the Supreme Court, Kings County (Mangano, J.), dated November 8, 2006, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.
Lynn W. L. Fahey, New York, N.Y. (William Kastin of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
Before: Fisher, J.P., Miller, Dillon and Eng, JJ.
Ordered that the order is affirmed, without costs or disbursements.
The People met their burden of proving, by clear and convincing evidence, that the defendant should be designated a level three sex offender ( see Correction Law art 6-C; People v Goldenberg, 17 AD3d 433; People v Dong V. Dao, 9 AD3d 401). In requesting a downward departure to a designation as a level two sex offender, the defendant failed to demonstrate, by clear and convincing evidence, the existence of a mitigating factor or factors of a kind or to a degree not otherwise taken into account by the guidelines ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]; see People v Rivera, 51 AD3d 646, 647, lv denied 11 NY3d 704; People v Taylor, 48 AD3d 775).