People v. Burgess

80 A.D.3d 589, 914 N.Y.S.2d 642

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 11, 2011
• Status: Published

Opinion

Appeal by the defendant from an order of the Supreme Court, Kings County (Tomei, J.), dated March 25, 2009, which, after a hearing, designated him a level three 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 three designation (see People v Bennis, 77 AD3d 896 [2010]; People v Lynk, 74 AD3d 929, 929-930 [2010]; People v Colavito, 73 AD3d 1004, 1005 [2010]; People v Pearsall, 67 AD3d 876 [2009]; People v Bowens, 55 AD3d 809, 810 [2008]; People v Williams, 49 AD3d 518 [2008]). Accordingly, the Supreme Court appropriately determined him to be a level three sex offender, and, after considering the mitigating factors advanced by the defendant, providently exercised its discretion in denying his request for a downward departure (see People v Lynk, 74 AD3d at 929-930; People v Colavito, 73 AD3d at 1005; People v Ainoris, 57 AD3d 864, 865 [2008]). Mastro, J.P., Rivera, Austin and Roman, JJ., concur.