People v Branigan

2008 NY Slip Op 08721 [56 AD3d 538]

November 12, 2008

Appellate Division, Second Department

As corrected through Wednesday, January 7, 2009

The People of the State of New York, Respondent, v DaleBranigan, Appellant.

—[*1]Lynn W. L. Fahey, New York, N.Y. (William Kastin of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J.Dennehy of counsel), for respondent.

Appeal by the defendant from an order of the Supreme Court, Kings County (Mangano, J.),dated November 8, 2006, which, after a hearing, designated him a level three sex offenderpursuant to Correction Law article 6-C.

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

The People met their burden of proving, by clear and convincing evidence, that the defendantshould be designated a level three sex offender (see Correction Law art 6-C; People v Goldenberg, 17 AD3d433 [2005]; People v Dong V. Dao,9 AD3d 401 [2004]). In requesting a downward departure to a designation as a level twosex offender, the defendant failed to demonstrate, by clear and convincing evidence, theexistence of a mitigating factor or factors of a kind or to a degree not otherwise taken intoaccount by the guidelines (see Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary, at 4 [2006]; see People v Rivera, 51 AD3d 646, 647 [2008], lv denied11 NY3d 704 [2008]; People v Taylor,48 AD3d 775 [2008]). Fisher, J.P., Miller, Dillon and Eng, JJ., concur.