Opinion
No. 2007-05098.
November 5, 2008.
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.
Steven Banks, New York, N.Y. (Steven J. Miraglia of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel; Avery N. Maron on the brief), for respondent.
Florio, J.P., Angiolillo, McCarthy and Leventhal, JJ.
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). 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; People v Hines, 24 AD3d 524; People v Guaman, 8 AD3d 545). 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.