People v. Cruz

Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated June 20, 2008, 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 Supreme Court’s determination to designate the defendant a level three sex offender is supported by clear and convincing evidence and, thus, should not be disturbed (see Correction

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” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]; People v Bowens, 55 AD3d 809 , 810 [2008]; People v Taylor, 47 AD3d 907 , 908 [2008]; People v Hines, 24 AD3d 524 , 525 [2005]; People v Ventura, 24 AD3d 527 [2005]; People v Dexter, 21 AD3d 403 , 404 [2005]).

Here, the Supreme Court providently exercised its discretion in denying the defendant’s request for a downward departure, as the defendant failed to present clear and convincing evidence of a mitigating factor “of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]; see People v Kraus, 66 AD3d 854 [2009]; People v Jacobs, 61 AD3d 835 , 836 [2009]; People v Bowens, 55 AD3d at 810 ; People v Taylor, 47 AD3d at 908 ; People v Wragg, 41 AD3d 1273 , 1274 [2007]; People v Burgos, 39 AD3d 520 [2007]; People v Agard, 35 AD3d 568 [2006]). Skelos, J.P., Eng, Hall and Lott, JJ., concur.