| People v Cruz |
| 2010 NY Slip Op 05744 [74 AD3d 1305] |
| June 29, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Victor Cruz, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart andMichael Shollar of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.),dated June 20, 2008, which, after a hearing, designated him a level three sex offender pursuant toCorrection Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The Supreme Court's determination to designate the defendant a level three sex offender issupported by clear and convincing evidence and, thus, should not be disturbed (see CorrectionLaw § 168-n [3]; People v Lewis, 56 AD3d 447 [2008]; People v Solis, 52AD3d 800 [2008]; People v Warren, 42 AD3d 593 [2007]; People v Bula, 41AD3d 569 [2007]; People v Morris, 33 AD3d 778 [2006]; People v Baylor, 19AD3d 467 [2005]; People v Cureton, 299 AD2d 532 [2002]).
A departure from the presumptive risk level is warranted where "there exists an aggravatingor mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into accountby the guidelines" (Sex Offender Registration Act: Risk Assessment Guidelines andCommentary, at 4 [2006]; People v Bowens, 55 AD3d 809, 810 [2008]; People vTaylor, 47 AD3d 907, 908 [2008]; People v Hines, 24 AD3d 524, 525 [2005];People v Ventura, 24 AD3d 527 [2005]; People v Dexter, 21 AD3d 403, 404[2005]).
Here, the Supreme Court providently exercised its discretion in denying the defendant'srequest for a downward departure, as the defendant failed to present clear and convincingevidence of a mitigating factor "of a kind, or to a degree, that is otherwise not adequately takeninto account by the guidelines" (Sex Offender Registration Act: Risk Assessment Guidelines andCommentary, at 4 [2006]; see People v Kraus, 66 AD3d 854 [2009]; People vJacobs, 61 AD3d 835, 836 [2009]; People v Bowens, 55 AD3d at 810; People vTaylor, 47 AD3d at 908; People v Wragg, 41 AD3d 1273, 1274 [2007]; People vBurgos, 39 AD3d 520 [2007]; People v Agard, 35 AD3d 568 [2006]). Skelos, J.P.,Eng, Hall and Lott, JJ., concur.