People of State of New York, respondent, v. Kenneth Charlton, appellant. (2010)

Submitted-November 16, 2010

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated November 20, 2009, 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 defendant failed to show by clear and convincing evidence that special circumstances existed warranting a downward departure from his presumptive designation as a risk level two sex offender (see People v. Bennis, 77 AD3d 896;  People v. Lynk, 74 AD3d 929;  People v. Colavito, 73 AD3d 1004, 1005;  People v. Guaman, 8 AD3d 545).   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. Bennis, 77 AD3d 896;  People v. Foy, 49 AD3d 835;  People v. Walker, 47 AD3d 692, 694).

FISHER, J.P., ANGIOLILLO, BELEN and AUSTIN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court