People v Burgess

2011 NY Slip Op 00204

Decided on January 11, 2011

Appellate Division, Second Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 11, 2011
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
REINALDO E. RIVERA
LEONARD B. AUSTIN
SHERI S. ROMAN, JJ.
2009-03276






Steven Banks, New York, N.Y. (Joanne Legano Ross of counsel), for
appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard
Joblove, Morgan J. Dennehy of counsel;
Rosemari Y. Nam on the brief), for
respondent.


DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Tomei, J.), dated March 25, 2009, which, after a hearing, designated him a level three 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 three designation (see People v Bennis, 77 AD3d 896; People v Lynk, 74 AD3d 929, 929-930; People v Colavito, 73 AD3d 1004, 1005; People v Pearsall, 67 AD3d 876; People v Bowens, 55 AD3d 809, 810; People v Williams, 49 AD3d 518). Accordingly, the Supreme Court appropriately determined him to be a level three sex offender, and, after considering the mitigating factors advanced by the defendant, providently exercised its discretion in denying his request for a downward departure (see People v Lynk, 74 AD3d at 929-930; People v Colavito, 73 AD3d at 1005; People v Ainoris, 57 AD3d 864, 865).
MASTRO, J.P., RIVERA, AUSTIN and ROMAN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court