| People v Sivells |
| 2011 NY Slip Op 03568 [83 AD3d 1027] |
| April 26, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v KeithSivells, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J.Dennehy of counsel; Gamaliel Marrero on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Firetog, J.),dated November 16, 2009, which, after a hearing, designated him a level three sex offender and asexually violent offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The Supreme Court providently exercised its discretion in denying the defendant'sapplication for a downward departure from his presumptive risk level status. The party seeking adownward departure from the presumptive risk level has the burden of demonstrating that thereare mitigating factors "of a kind, or to a degree, that [are] otherwise not adequately taken intoaccount" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4[2006]) by the guidelines (see People v Mendez, 79 AD3d 834 [2010], lv denied16 NY3d 707 [2011]; People v Johnson, 77 AD3d 897 [2010], lv denied 16NY3d 704 [2011]; People v Maiello, 32 AD3d 463 [2006]). Here, the defendant failed todemonstrate that there existed mitigating factors of a kind or to a degree not otherwise taken intoaccount by the guidelines. Covello, J.P., Eng, Hall and Roman, JJ., concur.