People v. Perry (56 A.D.2d 448, 2008)

— Appeal by the defendant from an order of the Supreme Court, Kings County (Dowling, J.), dated March 27, 2007, 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 People established by clear and convincing evidence that the defendant should be designated a level two sex offender under the Sex Offender Registration Act (see Correction Law art 6-C; People u Hegazy, 25 AD3d 675 [2006]). The party seeking a departure from the presumptive risk level has the burden of establishing by clear and convincing evidence that there are mitigating factors “of a kind or to a degree not otherwise taken into account” by the guidelines (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]; see People v Taylor, 47 AD3d 907 [2008]; People v Hines, 24 AD3d 524 [2005]; People v Guaman, 8 AD3d 545 [2004]). Here, the defendant did not submit any evidence to show the existence of such mitigating factors. Accordingly, the court properly designated the defendant a level two sex offender. Florio, J.E, Angiolillo, McCarthy and Leventhal, JJ., concur.