Robert C. Mitchell, Riverhead, N.Y. (James H. Miller of counsel), for appellant.Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Suffolk County (Kahn, J.), dated September 7, 2010, 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.
“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' ” ( People v. Bussie, 83 A.D.3d 920, 920–921, 920 N.Y.S.2d 718, lv. denied 17 N.Y.3d 704, 2011 WL 2535202 quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006 ed.]; see People v. Alston, 86 A.D.3d 553, 554, 926 N.Y.S.2d 901). Here, the Supreme Court properly determined that the defendant was not entitled to a downward departure and, thus, properly designated the defendant a level two sex offender ( see People v. Padro, 84 A.D.3d 1046, 922 N.Y.S.2d 808, lv. denied 17 N.Y.3d 711, 2011 N.Y. Slip Op. 84341, 2011 WL 4389142 [2011] ).
DILLON, J.P., ENG, SGROI and MILLER, JJ., concur.