People v. Pearsall

67 A.D.3d 876, 888 N.Y.S.2d 414

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 2009
• Status: Published

Opinion

Appeal by the defendant from an order of the County Court, Suffolk County (Spinner, J.), dated November 18, 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]) and pursuant to Doe v Pataki (481 F3d 69 [2007]), 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 Herron, 59 AD3d 414 [2009]; People v Ainoris, 57 AD3d 864 [2008]; People v Pasquarelli, 57 AD3d 753 [2008]; People v Guaman, 8 AD3d 545 [2004]; cf. People v Abdullah, 31 AD3d 515, 516 [2006]).

Accordingly, the County 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. Skelos, J.P., Eng, Austin and Roman, JJ., concur.