| People v Marin |
| 2008 NY Slip Op 01318 [48 AD3d 535] |
| February 13, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v ElvisMarin, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff, Richard LongworthHecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Westchester County (Bellantoni,J.), entered October 18, 2006, which, after a hearing, designated him a level three sex offenderpursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
A court has the discretion to depart from the presumptive risk level based upon the facts inthe record (see People v Hines, 24AD3d 524, 525 [2005]; People vGirup, 9 AD3d 913 [2004];People v Guaman, 8 AD3d 545 [2004]). It has been recognized, however, that"[u]tilization of the risk assessment instrument will generally 'result in the proper classification inmost cases so that departures will be the exception not the rule' " (People v Dexter, 21 AD3d 403,404 [2005], quoting Sex Offender Registration Act: Risk Assessment Guidelines andCommentary, at 4 [1997 ed]; see Peoplev Ventura, 24 AD3d 527 [2005]; People v Hines, 24 AD3d at 525). A departurefrom the presumptive risk level is warranted where "there exists an aggravating or mitigatingfactor of a kind or to a degree, not otherwise adequately taken into account by the guidelines"(Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006 ed];see People v White, 25 AD3d677 [2006]; People v Guaman,8 AD3d 545 [2004]). Further, there must be clear and convincing evidence of theexistence of a special circumstance to warrant any departure (see People v Dexter, 21 AD3d 403, 404 [2005]). Here, the factorsalleged by the defendant do not warrant a downward departure (see People v Velez, 38 AD3d 867,868 [2007]; People v Guaman, 8AD3d 545 [2004]).
The defendant's contention that the County Court improperly assessed points under riskfactor four is unpreserved for appellate review (see People v Fredlund, 38 AD3d 636 [2007]; People [*2]v Barber, 29 AD3d 660, 661 [2006]; People v Sinclair, 23 AD3d 537[2005]). In any event, that contention, as well as his remaining contention that the County Courtshould not have assessed points under risk factor five, is without merit.
Accordingly, the County Court's determination to designate the defendant a level three sexoffender was supported by clear and convincing evidence, and thus, should not be disturbed(see Correction Law § 168-n [3]; People v Morris, 33 AD3d 778 [2006]; People v Robert I., 33 AD3d 777[2006]). Spolzino, J.P., Skelos, Florio and Dickerson, JJ., concur.