People v. Lynk

74 A.D.3d 929, 901 N.Y.S.2d 867

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 8, 2010
• Status: Published

Opinion

Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated September 12, 2008, which, after a hearing to redetermine the defendant’s 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 sex offender designation (see People v Pearsall, 67 AD3d 876 [2009]; People v Atkinson, 65 AD3d 1112 [2009]; People v Herron, 59 AD3d 414, [2009]; People v Ainoris, 57 AD3d 864, 865 [2008]; People v Pasquarelli, 57 AD3d 753 [2008]; People v Guarnan, 8 AD3d 545 [2004]; cf. People v Stevens, 55 AD3d 892, 894 [2008]).

Accordingly, the Supreme Court, after considering the mitigating factors advanced by the defendant, appropriately determined the defendant to be a level two sex offender and providently exercised its discretion in denying his request for a downward departure (see People v Goodwin, 49 AD3d 619, 621 [2008]). Fisher, J.P., Covello, Hall and Sgroi, JJ., concur.