| People v Walker |
| 2008 NY Slip Op 00245 [47 AD3d 692] |
| January 15, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael Walker, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (William C. Milaccio, Lois C. Valerio,and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Westchester County (R.Bellantoni, J.), entered September 14, 2006, which, after a hearing, designated him a level threesex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The defendant pleaded guilty to rape in the first degree, and later was assigned a presumptiverisk level three sex offender designation (see Correction Law § 168-a). In its riskassessment instrument (hereinafter the RAI), the Board of Examiners of Sex Offenders(hereinafter the Board) indicated that a downward departure from level three to level two waswarranted. By way of explanation, in its case summary, the Board stated that the defendant "wasinvolved in one incident against the victim and has no such other known incidents." Following ahearing, the County Court designated the defendant a level three sex offender, and declined tomake a downward departure to level two. We affirm.
Generally, the RAI "will result in the proper classification in most cases so that departureswill be the exception—not the rule" (Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary, at 4 [2006 ed] [hereinafter Guidelines and Commentary]; see People v Williams, 19 AD3d388 [2005]; People v Guaman,8 AD3d 545 [2004]). A departure from the presumptive risk level is warranted only where"there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise notadequately taken into account by the guidelines" (Guidelines and Commentary at 4; see People v Williams, 19 AD3d388 [2005]; People v Guaman,8 AD3d 545 [2004]). There [*2]must be clear and convincingevidence of the existence of a special circumstance to warrant any departure (see People v Valentine, 15 AD3d463, 463-464 [2005]).
The defendant contends that the County Court improvidently exercised its discretion inrejecting the Board's recommendation of a downward departure. We disagree. The court was notbound by the Board's recommendation and, in the exercise of its discretion, was entitled to departfrom that recommendation and determine the defendant's risk level based on the record before it(see People v Charache, 32 AD3d1345 [2006], affd 9 NY3d 829 [2007]; People v Carswell, 8 AD3d 1073 [2004]). Here, the County Courtcorrectly noted that the Board's observation that the defendant was involved in one incident withthe victim, and that there were no other known incidents, were facts adequately taken intoaccount by the RAI itself. The defendant was assessed zero points both for risk factors three(number of victims) and four (duration of offense conduct with victim). Furthermore, the courtnoted that the defendant committed the instant offense while on parole for another,non-sex-related felony conviction, and providently exercised its discretion in considering thatfact in declining to depart from the defendant's presumptive level three designation (cf. People v Gonzalez, 34 AD3d240 [2006]).
The defendant failed to prove any mitigating factor or special circumstance which wouldwarrant a downward departure. Accordingly, the County Court providently exercised itsdiscretion in designating the defendant a level three sex offender (see People v Williams, 19 AD3d388 [2005]). Ritter, J.P. Florio, Miller and Dillon, JJ., concur.