People of State of New York, respondent, v John Lynk, appellant. v. << (2010)

Submitted-May 13, 2010

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated September 12, 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), 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 special circumstances existed warranting a downward departure from his presumptive risk level two sex offender designation (see People v. Pearsall, 67 AD3d 876;  People v. Atkinson, 65 AD3d 1112;  People v. Herron, 59 AD3d 414, 415;  People v. Ainoris, 57 AD3d 864, 865;  People v. Pasquarelli, 57 AD3d 753;  People v. Guaman, 8 AD3d 545;  cf.  People v. Stevens, 55 AD3d 892, 894).

Accordingly, the Supreme 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 (see People v. Goodwin, 49 AD3d 619, 621).

FISHER, J.P., COVELLO, HALL and SGROI, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court