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People v. Kraus

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


October 20, 2009

PEOPLE OF STATE OF NEW YORK, RESPONDENT,
v.
THOMAS KRAUS, APPELLANT.

Appeal by the defendant from an order of the Supreme Court, Kings County (Hall, J.), dated April 9, 2008, which, after a hearing, designated him a level two 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.

STEVEN W. FISHER, J.P., JOSEPH COVELLO, DANIEL D. ANGIOLILLO and SHERI S. ROMAN, JJ.

DECISION & ORDER

ORDERED that the order is affirmed, without costs or disbursements.

The Supreme Court did not improvidently exercise its discretion in declining to downwardly depart from the defendant's presumptive risk level inasmuch as there was no clear and convincing evidence in the record of a mitigating factor "of a kind or to a degree, not otherwise adequately taken into account by the guidelines" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006 ed]; see People v Burgos, 39 AD3d 520; cf. People v Agard, 35 AD3d 568).

FISHER, J.P., COVELLO, ANGIOLILLO and ROMAN, JJ., concur.

20091020

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