Appeal by the defendant from an order of the Supreme Court, Queens County (Latella, J.), dated October 31, 2008, which, after a hearing to redetermine his sex offender risk level pursuant to the stipulation of settlement in Doe v Pataki (3 F Supp 2d 456), 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.
A. GAIL PRUDENTI, P.J., DANIEL D. ANGIOLILLO, RUTH C. BALKIN and CHERYL E. CHAMBERS, JJ.
ORDERED that the order is affirmed, without costs or disbursements.
The defendant failed to show by clear and convincing evidence that there existed mitigating circumstances of a kind or to a degree not otherwise taken into account by the risk assessment instrument that would have warranted a downward departure from his presumptive risk level designation (see People v McKee, 66 AD3d 854, 855; People v Pietarniello, 53 AD3d 475, 478; People v McLaughlin, 40 AD3d 832, 833). Accordingly, the Supreme Court providently exercised its discretion in designating him a level two sex offender (see People v Pietarniello, 53 AD3d at 478; People v Gochnour, 50 AD3d 754, 755).
PRUDENTI, P.J., ANGIOLILLO, BALKIN and CHAMBERS, JJ., concur.
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