
    The People of the State of New York, Respondent, v Edward Martinez, Appellant.
    [832 NYS2d 807]—
   Appeal by the defendant from an order of the Supreme Court, Kings County (Marrero, J.), dated February 28, 2005, which, after a hearing to redetermine the defendant’s 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.

Contrary to the defendant’s contention on appeal, the People proved by clear and convincing evidence that he was armed with a dangerous instrument (a knife) during the commission of the underlying crime (see People v Overman, 7 AD3d 596 [2004]; People v Burgess, 6 AD3d 686 [2004]; People v Oquendo, 1 AD3d 421 [2003]). Thus, the defendant was properly assessed points in the risk assessment instrument for such conduct, making him a presumptive level two sex offender. Further, the defendant failed to present clear and convincing evidence of the existence of special circumstances warranting a downward departure from his presumptive risk level (see People v Williams, 34 AD3d 662 [2006]; People v Guaman, 8 AD3d 545 [2004]). Thus, the defendant was properly adjudicated a level two sex offender. Miller, J.E, Ritter, Covello and McCarthy, JJ., concur.  