Opinion
No. 2009-03839.
June 7, 2011.
Appeal by the defendant from an order of the Supreme Court, Kings County (Chun, J.), dated April 20, 2009, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehey, and Matthew Livits of counsel), for respondent.
Before: Prudenti, P.J., Angiolillo, Florio and Cohen, JJ.
Ordered that the order is affirmed, without costs or disbursements.
The Board of Examiners of Sex Offenders recommended that the defendant be classified as a level three sex offender. "A departure from the presumptive risk level is warranted where `there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines'" ( People v Bussie, 83 AD3d 920, 920-921, quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]). The Supreme Court properly determined that the defendant was not entitled to a downward departure and, thus, properly designated the defendant a level three sex offender ( see People v Bussie, 83 AD3d 920; People v Mendez, 79 AD3d 834).