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People v. Pearsall

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


November 17, 2009

PEOPLE OF STATE OF NEW YORK, RESPONDENT,
v.
ARTHUR E. PEARSALL, APPELLANT.

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.

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.

PETER B. SKELOS, J.P., RANDALL T. ENG, LEONARD B. AUSTIN and SHERI S. ROMAN, JJ.

DECISION & ORDER

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.

SKELOS, J.P., ENG, AUSTIN and ROMAN, JJ., concur.

20091117

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