SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
December 16, 2008
PEOPLE OF STATE OF NEW YORK, ETC., RESPONDENT,
JOSEPH COOKE, APPELLANT.
Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated June 1, 2007, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
WILLIAM F. MASTRO, J.P., HOWARD MILLER, RUTH C. BALKIN and WILLIAM E. McCARTHY, JJ.
DECISION & ORDER
ORDERED that the order is affirmed, without costs or disbursements.
A downward departure from the presumptive risk level recommended by the Board of Examiners of Sex Offenders in the Risk Assessment Instrument, in this case, risk level three, is warranted only upon a showing by the defendant, by clear and convincing evidence, that there were mitigating factors that were not properly taken into account by the guidelines. Since the defendant failed to make that showing, a downward departure was not warranted (see People v Guaman, 8 AD3d 545).
MASTRO, J.P., MILLER, BALKIN and McCARTHY, JJ., concur.
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