| People v Taylor |
| 2008 NY Slip Op 00671 [47 AD3d 907] |
| January 29, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Lawrence Taylor, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee,and Morgan J. Dennehy of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Marrero, J.),dated March 7, 2006, which, after a hearing to redetermine the defendant's sex offender risk levelpursuant to the stipulation of settlement in Doe v Pataki (3 F Supp 2d 456 [1998]),designated him a level three sex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
On July 27, 1984 the eight-year-old victim was on her way home from a store when thedefendant abducted her from the elevator of her Brooklyn apartment building. The defendantcovered her mouth, grabbed her neck, dragged her to the roof of the building, and raped her. Thedefendant then threw the victim off the roof. The victim landed on the ground five stories belowand suffered multiple broken bones. As a result of her injuries, the victim was hospitalized forthree months. For these crimes, the defendant was charged with rape in the first degree,attempted murder in the second degree, assault in the first degree (two counts), and sexual abusein the first degree. The defendant pleaded guilty to rape in the first degree, and was sentenced toan indeterminate term of 6 to 18 years' imprisonment. Following a hearing on September 9, 1999the defendant was adjudicated a level three sex offender. On February 2, 2006 and March 7, 2006a hearing was held pursuant to the stipulation of settlement reached in Doe v Pataki (3 FSupp 2d 456 [1998]), and the Supreme Court determined that the defendant was a level three sexoffender.
A court, in the exercise of its discretion, may depart from the presumptive risk leveldetermined by the risk assessment instrument based upon the facts in the record (see People v Inghilleri, 21 AD3d404, 405 [2005]; People v Girup,9 AD3d 913 [2004]; People vGuaman, 8 AD3d 545 [2004]). [*2]However, "utilizationof the risk assessment instrument will generally 'result in the proper classification in most casesso that departures will be the exception not the rule' " (People v Guaman, 8 AD3d at 545,quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [1997ed]). "A departure from the presumptive risk level is warranted where 'there exists an aggravatingor mitigating factor of a kind or to a degree not otherwise taken into account by the guidelines' "(People v Inghilleri, 21 AD3d at 406, quoting Sex Offender Registration Act: RiskAssessment Guidelines and Commentary at 4 [1997 ed]; see People v Mount, 17 AD3d 714, 715 [2005]; People v Girup, 9 AD3d 913[2004]; People v Guaman, 8 AD3d545 [2004]).
Here, the Supreme Court properly determined that there was clear and convincing evidenceto support the presumptive level three sex offender designation (see People v McLaughlin, 40 AD3d832 [2007]) and providently exercised its discretion in denying the defendant's request for adownward departure, as the defendant failed to present clear and convincing evidence of specialcircumstances warranting such a departure (see People v Adams, 44 AD3d 1020 [2007], lv denied 9NY3d 818 [2008]).
Furthermore, the Supreme Court properly considered the clear and convincing evidence thatthe defendant threw the eight-year-old victim off the roof of the building, causing her to fall fivestories and suffer numerous broken bones, when it invoked the presumptive override forinflicting serious physical injury (see Correction Law § 168-n [3]; People vBrown, 302 AD2d 919, 920 [2003]) and determined that the defendant was a level three sexoffender. Mastro, J.P., Santucci, Balkin and Dickerson, JJ., concur.