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

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Supreme Court, Appellate Division, Second Department, New York.

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

2008-08935

Decided: October 26, 2010

STEVEN W. FISHER, J.P. FRED T. SANTUCCI RANDALL T. ENG SANDRA L. SGROI, JJ. Lynn W.L. Fahey, New York, N.Y. (Erin R. Collins of counsel), for appellant. Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Michael Shollar of counsel), for respondent.

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

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