People of State of New York, respondent, v. Clayton Brown, appellant. (2011)

Submitted—May 19, 2011

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Chun, J.), dated April 20, 2009, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.

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

The Board of Examiners of Sex Offenders recommended that the defendant be classified as a level three sex offender.  “A departure from the presumptive risk level is warranted where ‘there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines' ” (People v. Bussie, 83 AD3d 920, 920, quoting Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary, at 4 [2006 ed] ).   The Supreme Court properly determined that the defendant was not entitled to a downward departure and, thus, properly designated the defendant a level three sex offender (see People v. Bussie, 83 AD3d 920;  People v. Mendez, 79 AD3d 834).

PRUDENTI, P.J., ANGIOLILLO, FLORIO and COHEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court