
    The People of the State of New York, Respondent, v Joseph Cooke, Appellant.
    [868 NYS2d 909]
   A downward departure from the presumptive risk level recommended by the Board of Examiners of Sex Offenders in the risk assessment instrument, in this case, risk level three, is warranted only upon a showing by the defendant, by clear and convincing evidence, that there were mitigating factors that were not properly taken into account by the guidelines. Since the defendant failed to make that showing, a downward departure was not warranted (see People v Guaman, 8 AD3d 545 [2004]). Mastro, J.P., Miller, Balkin and McCarthy, JJ., concur.  