PEOPLE v. BRANIGAN (2008)

Appeal by the defendant from an order of the Supreme Court, Kings County (Mangano, J.), dated November 8, 2006, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.

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

The People met their burden of proving, by clear and convincing evidence, that the defendant should be designated a level three sex offender (see Correction Law art. 6–C;  People v. Goldenberg, 17 A.D.3d 433, 792 N.Y.S.2d 354;   People v. Dong V. Dao, 9 A.D.3d 401, 779 N.Y.S.2d 914).  In requesting a downward departure to a designation as a level two sex offender, the defendant failed to demonstrate, by clear and convincing evidence, the existence of a mitigating factor or factors of a kind or to a degree not otherwise taken into account by the guidelines (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary, at 4 [2006 ed.];  see People v. Rivera, 51 A.D.3d 646, 647, 855 N.Y.S.2d 916, lv. denied 11 N.Y.3d 704, 864 N.Y.S.2d 808, 894 N.E.2d 1199;  People v. Taylor, 48 A.D.3d 775, 853 N.Y.S.2d 354).