Opinion
No. 2007-07385.
December 16, 2008.
Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated April 23, 2007, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.
Lynn W. L. Fahey, New York, N.Y. (Sarah J. Berger of counsel), for appellant.
Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Lauren-Brooke Eisen of counsel), for respondent.
Before: Fisher, J.P., Florio, Carni and Chambers, JJ. concur.
Ordered that the order is affirmed, without costs or disbursements.
The Supreme Court's designation of the defendant as a level three sex offender was supported by clear and convincing evidence ( see Correction Law art 6-C; People v Dong V. Dao, 9 AD3d 401, 401-402; People v Smith, 5 AD3d 752; People v Moore, 1 AD3d 421). The Supreme Court providently exercised its discretion in denying the request for a downward departure from the defendant's presumptive risk level since the defendant did not assert a "mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; see People v Foy, 49 AD3d 835; People v Walker, 47 AD3d 692, 694; People v Williams, 19 AD3d 388; People v Guaman, 8 AD3d 545).