People v Perry |
2008 NY Slip Op 08468 [56 AD3d 448] |
November 5, 2008 |
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 Clyde Perry, Appellant. |
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Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel; Avery N. Maron on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Dowling, J.), dated March 27, 2007, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The People established by clear and convincing evidence that the defendant should be designated a level two sex offender under the Sex Offender Registration Act (see Correction Law art 6-C; People v Hegazy, 25 AD3d 675 [2006]). The party seeking a departure from the presumptive risk level has the burden of establishing by clear and convincing evidence that there are mitigating factors "of a kind or to a degree not otherwise taken into account" by the guidelines (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]; see People v Taylor, 47 AD3d 907 [2008]; People v Hines, 24 AD3d 524 [2005]; People v Guaman, 8 AD3d 545 [2004]). Here, the defendant did not submit any evidence to show the existence of such mitigating factors. Accordingly, the court properly designated the defendant a level two sex offender. Florio, J.P., Angiolillo, McCarthy and Leventhal, JJ., concur.