People v Burgess |
2011 NY Slip Op 00204 [80 AD3d 589] |
January 11, 2011 |
Appellate Division, Second Department |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
The People of the State of New York, Respondent, v Edward Burgess, Appellant. |
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Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy of
counsel; Rosemari Y. Nam on the brief), for respondent.
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 [2010]; People v Lynk, 74 AD3d 929, 929-930 [2010]; People v Colavito, 73 AD3d 1004, 1005 [2010]; People v Pearsall, 67 AD3d 876 [2009]; People v Bowens, 55 AD3d 809, 810 [2008]; People v Williams, 49 AD3d 518 [2008]). 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 AD2d at 1004; People v Ainoris, 57 AD3d 864, 865 [2008]). Mastro, J.P., Rivera, Austin and Roman, JJ., concur.