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

Submitted-October 7, 2010

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated August 29, 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 special circumstances existed warranting a downward departure from his presumptive risk level two designation (see People v. Lynk, 74 AD3d 929, lv denied 15 NY3d 708;  People v. Colavito, 73 AD3d 1004, lv denied 15 NY3d 705;  People v. Pearsall, 67 AD3d 876;  People v. Williams, 49 AD3d 518;  People v. Adams, 44 AD3d 1020;  People v. Morales, 33 AD3d 982, 983).   Accordingly, the Supreme Court, after considering the mitigating factors advanced by the defendant, appropriately determined him to be a level two sex offender, and providently exercised its discretion in denying his request for a downward departure (see People v. Lynk, 74 AD3d 929;  People v. Colavito, 73 AD3d 1004;  People v. Ainoris, 57 AD3d 864, 865).

FISHER, J.P., SANTUCCI, ENG and SGROI, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court