The People of the State of New York, Respondent, v. Dale Branigan, Appellant

The People of the State of New York, Respondent, v Dale Branigan, Appellant. [868 NYS2d 77] [MAJORITY] — Appeal by the defendant from an order of the Supreme Court, Kings County (Mangano, J.), dated November 8, 2006, 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 People met their burden of proving, by clear and convincing evidence, that the defendant should be designated a level three sex offender (see Correction Law art 6-C; People v Goldenberg, 17 AD3d 433 [2005]; People v Dong V. Dao, 9 AD3d 401 [2004]). In requesting a downward departure to a designation as a level two sex offender, the defendant failed to demonstrate, by clear and convincing evidence, the existence of a mitigating factor or factors of a kind or to a degree not otherwise taken into account by the guidelines (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006] ; see People v Rivera, 51 AD3d 646, 647 [2008], lv denied 11 NY3d 704 [2008]; People v Taylor, 48 AD3d 775 [2008]). Fisher, J.P., Miller, Dillon and Eng, JJ., concur.