Appeal by the defendant from an order of the Supreme Court, Queens County (Latella, J.), dated October 31, 2008, which, after a hearing to redetermine his sex offender risk level pursuant to the stipulation of settlement in Doe v Pataki (3 F Supp 2d 456 [1998]), 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 there existed mitigating circumstances of a kind or to a degree not otherwise taken into account by the risk assessment instrument that would have warranted a downward departure from his presumptive risk level designation (see People v McKee, 66 AD3d 854, 855 [2009]; People v Pietarniello, 53 AD3d 475, 478 [2008]; People v McLaughlin, 40 AD3d 832, 833 [2007]). Accordingly, the Supreme Court providently exercised its discretion in designating him a level two sex offender (see People v Pietarniello, 53 AD3d at 478; People v Gochnour, 50 AD3d 754, 755 [2008]). Prudenti, P.J., Angiolillo, Balkin and Chambers, JJ., concur.