People of State of New York, respondent, v. Larry Richardson, appellant. (2010)

Submitted-April 29, 2010

DECISION & ORDER

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.

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.

ENTER:

James Edward Pelzer

Clerk of the Court