People v. Charlton

• Decision Date: 17 December 2010
• Parties: PEOPLE of State of New York, respondent, v. Kenneth CHARLTON, appellant.
• Court: New York Supreme Court — Appellate Division

912 N.Y.S.2d 886
79 A.D.3d 936

PEOPLE of State of New York, respondent,
v.
Kenneth CHARLTON, appellant.

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

Dec. 17, 2010.

912 N.Y.S.2d 887

Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart of counsel), for respondent.

Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated November 20, 2009, 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 defendant failed to show by clear and convincing evidence that special circumstances existed warranting a downward departure from his presumptive designation as a risk level two sex offender ( see People v. Bennis, 77 A.D.3d 896, 909 N.Y.S.2d 645; People v. Lynk, 74 A.D.3d 929, 901 N.Y.S.2d 867; People v. Colavito, 73 A.D.3d 1004, 1005, 900 N.Y.S.2d 675; People v. Guaman, 8 A.D.3d 545, 778 N.Y.S.2d 704). 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. Bennis, 77 A.D.3d 896, 909 N.Y.S.2d 645; People v. Foy, 49 A.D.3d 835, 853 N.Y.S.2d 890; People v. Walker, 47 A.D.3d 692, 694, 850 N.Y.S.2d 494).

FISHER, J.P., ANGIOLILLO, BELEN and AUSTIN, JJ., concur.