People v. Bennis

77 A.D.3d 896, 909 N.Y.S.2d 645

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 26, 2010
• Status: Published

Opinion

Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated August 29, 2008, which, after a hearing to redetermine his sex offender risk level pursuant to the stipulation of settlement in Doe v Pataki (3 F Supp 2d 456 [1998]), designated him a level two sex offender pursuant to Correction Law article 6-C.

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

The defendant failed to show by clear and convincing evidence that special circumstances existed warranting a downward departure from his presumptive risk level two designation (see People v Lynk, 74 AD3d 929 [2010], lv denied 15 NY3d 708 [2010]; People v Colavito, 73 AD3d 1004 [2010], lv denied 15 NY3d 705 [2010]; People v Pearsall, 67 AD3d 876 [2009]; People v Williams, 49 AD3d 518 [2008]; People v Adams, 44 AD3d 1020 [2007]; People v Morales, 33 AD3d 982, 983 [2006]). Accordingly, the Supreme Court, after considering the mitigating factors advanced by the defendant, appropriately determined him to be a level two sex offender, and providently exercised its discretion in denying his request for a downward departure (see People v Lynk, 74 AD3d 929 [2010]; People v Colavito, 73 AD3d 1004 [2010]; People v Ainoris, 57 AD3d 864, 865 [2008]). Fisher, J.P., Santucci, Eng and Sgroi, JJ., concur.