| People v Perry |
| 2008 NY Slip Op 08468 [56 AD3d 448] |
| November 5, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v ClydePerry, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J.Dennehy of counsel; Avery N. Maron on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Dowling, J.),dated March 27, 2007, which, after a hearing, designated him a level two sex offender pursuantto Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The People established by clear and convincing evidence that the defendant should bedesignated a level two sex offender under the Sex Offender Registration Act (seeCorrection Law art 6-C; People vHegazy, 25 AD3d 675 [2006]). The party seeking a departure from the presumptive risklevel has the burden of establishing by clear and convincing evidence that there are mitigatingfactors "of a kind or to a degree not otherwise taken into account" by the guidelines (SexOffender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]; see People v Taylor, 47 AD3d 907[2008]; People v Hines, 24 AD3d524 [2005]; People v Guaman,8 AD3d 545 [2004]). Here, the defendant did not submit any evidence to show the existenceof such mitigating factors. Accordingly, the court properly designated the defendant a level twosex offender. Florio, J.P., Angiolillo, McCarthy and Leventhal, JJ., concur.