PEOPLE v. PERRY (2008)

Appeal by the defendant from an order of the Supreme Court, Kings County (Dowling, J.), dated March 27, 2007, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.

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

 The People established by clear and convincing evidence that the defendant should be designated a level two sex offender under the Sex Offender Registration Act (hereinafter SORA) (see Correction Law art. 6-C;  People v. Hegazy, 25 A.D.3d 675, 811 N.Y.S.2d 700).   The party seeking a departure from the presumptive risk level has the burden of establishing by clear and convincing evidence that there are mitigating factors “of a kind or to a degree not otherwise taken into account” by the guidelines (SORA:  Risk Assessment Guidelines and Commentary, at 4 [2006 ed.];   see People v. Taylor, 47 A.D.3d 907, 850 N.Y.S.2d 195;  People v. Hines, 24 A.D.3d 524, 807 N.Y.S.2d 608;  People v. Guaman, 8 A.D.3d 545, 778 N.Y.S.2d 704).   Here, the defendant did not submit any evidence to show the existence of such mitigating factors.   Accordingly, the court properly designated the defendant a level two sex offender.