Opinion
No. 2008-11376.
November 17, 2009.
Appeal by the defendant from an order of the County Court, Suffolk County (Spinner, J.), dated November 18, 2008, which, after a hearing to redetermine the defendant's sex offender risk level pursuant to the stipulation of settlement in Doe v Pataki ( 3 F Supp 2d 456) and pursuant to Doe v Pataki ( 481 F3d 69), designated him a level two sex offender pursuant to Correction Law article 6-C.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera of counsel), for respondent.
Before: Skelos, J.P., Eng, Austin and Roman, JJ., concur.
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 two sex offender designation ( see People v Herron, 59 AD3d 414; People v Ainoris, 57 AD3d 864; People v Pasquarelli, 57 AD3d 753; People v Guaman, 8 AD3d 545; cf. People v Abdullah, 31 AD3d 515, 516).
Accordingly, the County Court, after considering the mitigating factors advanced by the defendant, appropriately determined the defendant to be a level two sex offender and providently exercised its discretion in denying his request for a downward departure.