| People v Lattimore |
| 2008 NY Slip Op 09974 [57 AD3d 752] |
| December 16, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v MichaelLattimore, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (John J. Carmody, Richard Longworth Hecht,and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Westchester County (Bellantoni, J.),entered October 31, 2007, which, after a hearing, designated him a level two sex offender pursuant toCorrection 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 be designated alevel two sex offender pursuant to Correction Law article 6-C (see People v Hegazy, 25 AD3d 675 [2006]). A defendant seeking adownward departure has the burden of establishing by clear and convincing evidence that there aremitigating factors that were not taken into consideration under the guidelines (see People v Taylor, 47 AD3d 907[2008]). Here, the defendant did not submit any evidence of mitigating factors that were not alreadytaken into consideration under the guidelines. Further, the court appropriately found that the defendantwas not over-assessed on the issue of his risk to public safety.
We do not reach the defendant's contention that he should not have been assessed points forcontinuing course of sexual misconduct in light of the defendant's express statement at the hearing thathe did not contest the points assessed for this category (see People v Kelly, 46 AD3d 790 [2007]). Rivera, J.P., Spolzino, Carniand Leventhal, JJ., concur.