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.
As corrected through Wednesday, March 9, 2011


The People of the State of New York, Respondent,
v
Edward Burgess, Appellant.

[*1]

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.

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.